Skip to main content

Full text of "A treatise on the law of corporations"

See other formats 


Google 


This  is  a  digital  copy  of  a  book  that  was  preserved  for  generations  on  Hbrary  shelves  before  it  was  carefully  scanned  by  Google  as  part  of  a  project 

to  make  the  world's  books  discoverable  online. 

It  has  survived  long  enough  for  the  copyright  to  expire  and  the  book  to  enter  the  public  domain.  A  public  domain  book  is  one  that  was  never  subject 

to  copyright  or  whose  legal  copyright  term  has  expired.  Whether  a  book  is  in  the  public  domain  may  vary  country  to  country.  Public  domain  books 

are  our  gateways  to  the  past,  representing  a  wealth  of  history,  culture  and  knowledge  that's  often  difficult  to  discover. 

Marks,  notations  and  other  maiginalia  present  in  the  original  volume  will  appear  in  this  file  -  a  reminder  of  this  book's  long  journey  from  the 

publisher  to  a  library  and  finally  to  you. 

Usage  guidelines 

Google  is  proud  to  partner  with  libraries  to  digitize  public  domain  materials  and  make  them  widely  accessible.  Public  domain  books  belong  to  the 
public  and  we  are  merely  their  custodians.  Nevertheless,  this  work  is  expensive,  so  in  order  to  keep  providing  this  resource,  we  liave  taken  steps  to 
prevent  abuse  by  commercial  parties,  including  placing  technical  restrictions  on  automated  querying. 
We  also  ask  that  you: 

+  Make  non-commercial  use  of  the  files  We  designed  Google  Book  Search  for  use  by  individuals,  and  we  request  that  you  use  these  files  for 
personal,  non-commercial  purposes. 

+  Refrain  fivm  automated  querying  Do  not  send  automated  queries  of  any  sort  to  Google's  system:  If  you  are  conducting  research  on  machine 
translation,  optical  character  recognition  or  other  areas  where  access  to  a  large  amount  of  text  is  helpful,  please  contact  us.  We  encourage  the 
use  of  public  domain  materials  for  these  purposes  and  may  be  able  to  help. 

+  Maintain  attributionTht  GoogXt  "watermark"  you  see  on  each  file  is  essential  for  informing  people  about  this  project  and  helping  them  find 
additional  materials  through  Google  Book  Search.  Please  do  not  remove  it. 

+  Keep  it  legal  Whatever  your  use,  remember  that  you  are  responsible  for  ensuring  that  what  you  are  doing  is  legal.  Do  not  assume  that  just 
because  we  believe  a  book  is  in  the  public  domain  for  users  in  the  United  States,  that  the  work  is  also  in  the  public  domain  for  users  in  other 
countries.  Whether  a  book  is  still  in  copyright  varies  from  country  to  country,  and  we  can't  offer  guidance  on  whether  any  specific  use  of 
any  specific  book  is  allowed.  Please  do  not  assume  that  a  book's  appearance  in  Google  Book  Search  means  it  can  be  used  in  any  manner 
anywhere  in  the  world.  Copyright  infringement  liabili^  can  be  quite  severe. 

About  Google  Book  Search 

Google's  mission  is  to  organize  the  world's  information  and  to  make  it  universally  accessible  and  useful.   Google  Book  Search  helps  readers 
discover  the  world's  books  while  helping  authors  and  publishers  reach  new  audiences.  You  can  search  through  the  full  text  of  this  book  on  the  web 

at|http  :  //books  .  google  .  com/| 


J'i'r-'.Ki     .*     r^  riL         jm    ^    r-^        *-^"0    '  a-  ^ 


*Mr\/s  ihA 


F 


vs.' 


'^y 


4 


TREATISE 


O  N 


XDe  Hato  of  CotpotattoniS. 


^ 
\ 


> 
^ 

i 


VOL.   II. 


TREATISE 


■•«•* 


O  N  « » 


%\)t  Hato  of  Corporat^onsJ. 


/ 

BY    STEWART    KYD, 

BARRISTER  AT  LAW,  OF  TH£  MIDDLE  TEMPLB. 


VOL.   It 


LONDOrf: 

■      ■■       II.    — — 

PRINTED    rOR    J.   BPTTKRWORTB,    F  L  I  £  T- 8  T  ft  E  IT« 

1794- 


ADVERTISEMENT. 


W  HEN  the  Author  publifhed  the  firft  volume 
of  this  work,  he  fuppofed,  from  the  appearance  of 
the  materials  which  he  had'  coUedled,  that  they 
would  be  fufficient  for  two  additional  volumes; 
he  has,  however,  been  able  to  comprefs  them 
into  one,  fo  that  the  prefent  volume  completes 
the  work. 


Tower,  Sept.  i,  17945 


Where  the  laft  Chapter  was  written,  during  the 
Author^'s  confinement  on  a  warrant  of  com- 
mitment for  High-Treafon. 


mm 


/ 

mm 


CONTENTS 


OF    THE 


SECOND   VOLUME. 


CHAP.    III. 

eP  CORPORATIONS  CONSIDERED  IN  RESPECT  TO  THEIR 

INTERNAL  CONSTITUTION. 


Section  VIII. 
Of  Elections  in  Corporations* 

PAGE. 

How  far  they  depend  on  charier^  or  prefcriptive  ufage  z^--io 

' may  be  offered  by  bye  laws  -         20—3 1 

Byjiatute  11  G.  i,  r.  4  -        -  -  31 — 50 

Section  IX. 

Of  the  power  of  Corporations  over  their  members  and 

officers. 

Power  of  amotion  incident  to  the  corporation  at  large  50—56 

•  a  4  Power 


Vm  CONTENTS. 

Pags. 

Power  of  amotion  may  he  confined  to  a  feleA  hody  56 

■  ■     ■  how  to  he  exerctjed  -  57 

■  '  for  what  caufes  -  -       j8 — 94 


Section  X. 

Of  Bye  Laws. 

Power  of  making  hye  laws                -  -       9^..  10^ 

i)n  whom  they  are  hinding                    -  103 — 107 

Qualities  necejfary  to  make  them  good           -  1 07 — 1 1 2 

General  ohje^s  of  hye  laws                -  ->     113— •156 

Freedom  of  trade                -                    -  125 — 130 

Cuftoms  on  which  hye  laws  are  founded        -  13  7—149 

How  hye  laws  are  enforced         -                 -  156*— 170 

How  their  validity  may  he  called  in  quejlion  1 70 — 173 


CHAP.   IV, 


OF     THE     MANNER    IN     WHICH     CORPORATIONS     ARE 

VISITED. 

Section    I. 

Of  a  Private  Vifitor. 

Antiquity  of  the  office  -  «  174 — 179 

yurifdiSiion 


CONTENTS.  IX 

Page. 

JurifdiSlion  of  the  ordinary  -  -  180 

Founder               -  -  -  -         181 

Statute  of  charitable  ufes  -  -      182—186 

JurifdtSfion  of  the  (hurt  of  Chancery  -         186— 195 

General  andfpecial  vijitor  -  -  I9S>  '9^ 

Statutes  of  eleemofynary  foundations  -  227 — 240 

Power  of  a  vijitor  -  -  196—227 

Super intendance  of  the  King's  Bench  -  240 

What  perfonsfubje^  to  the  vijitatorial  power  240—248 

Vifitor* s  jurifdiSlion  as  to  new fellowjhips  248 — 293 

,.  does   not    extend  to  difputes 

where  a  fir  anger  is  party  -  293 — 267 

JurifdiSiion  of  the  hijhopj  as  vijitor  of  dean  and 

chapter  ^  -  ^  267—271 

Vifitor  cannotj  asjuch^  appoint  to  vacant  places      271—276 
>  cannot  take  cognizance  of  offences  againjl 

the  public  laws  of  the  kingdom  -  -  276 

Remedy  where  the  vifitor  exceeds  his  authority  277 

—  where  he  refufes  to  execute  it  -  278—286 

Visitatorial  power,   where  no  vifitor  has 

been  appointed  by  the  founder  -  286—290 

Section  II. 

Of  the  Writ  of  Mandamus. 

The  hifiory  of  the  writ                -                -  29 1—293 

Jn  what  cafes  it  lies            -              -               -  293—337 

Subfiance  of  the  writ                -                -  337^3^^ 

How  obtained               «                -                -  343 — 345 

Affidavit  on  which  the  application  is  founded  34S"~34^ 

How  the  writ  mufi  be  dircSied  -  347'~34'9 

How 


CONTENTS. 


How  the  writ  muft  be  tejie^d 
When  returnable 


Page. 

349 

r.         ^   L         .  '  350—353 

Form  of  the  writ  -  .  .  353—360 

When  an  objection  may  be  taken  to  It     -  .     360—362 

Return^  how  made  -  .  ^^ 

Remedy  for  afalfe  return  -  363—37 1 

How  far  hi  minifterial  officer  muft  obey  the  writ    3  7 1 — -  76 

What  is  a  good  return  -  ,  S77 -39« 

Cojis  - 


393—394 


Section  III, 


Of  Informations  in  the  nature  of  Quo  Warranto, 

Proceedings  on  the  old  writ  of  quo  warranto  395—403 

Informations  in  the  nature  of  quo  warranto  at  tbefuit 

of  the  attorney  general  .  _  403-410 

by  the  majler  of  the  Crown  Office  4 1  o 

•"■""; h  'virtue  of  the  ftatute  g  Jnn.  c.  20  412 

Difference  between  the  power  of  the  attorney  general  and 

the  mafler  of  the  crown  office  •-  .  .jg 

What  cafes  are  within  the  meaning  of  9  Ann.  c.  20  42a 

Under  ivhat  cir cum/lances  an  information  on  thatflatute 

wtll  be  granted  -  . 

D  /•  "*  *"  43^ 

rrocefs  on  fuch  information  .  -  438 

Hou)  the  defendant  may  plead  ,  430 


CHAP. 


CONTENTS.  XI 


CHAP.     V. 

OF   THE  DISSOLUTION  OF    A   CORPORATION,   AMD  ITS 

EFFECTS.  ^ 

Page. 

That  a  corporation  may  be  dijfohedy  an  idea  familiar  to 
the  law  of  England  -  -  44^ 

jt  corporation  cannot  be  diffolved  by  the  King^s  prero- 
gative  .  -  -  447 

, may  be  diffolved  by  aSl  of  parliament  447 

_  . —  ■  by  the  death  of  all  its  mem^^ 

bers  -  -  "  "  447 

-  by  its  incapacity  t9  continue 


thefucceffton  .  -  -  448 

-  byfurrender  -  465 

...ii..— .»———.— ——  by  forfeiture  -  474 


By  what  proceeding  a  forfeiture  is  enforced  4^6 

The  effe^is  of  a  diffolution  -  -  5'^ 


r 


TABLE 


TABLE 


OF  THB 


PRINCIPAL  CASES 


CITED  IN  THB 


f 

FOLLOWING   VOLUME. 


PAGE. 

AbERYST WITH^  cafe  of,  2  Str.  1 1 57  -  -  38 
Abing<ion,  cafe  of  the  Mayor  of,  2  Salk.  43  r, 

1  Ld.  Raym-  559  -  -  -  -  353, 380 
All-Souls,  Oxford,  cafe  of.  Skin.  13,  2  Show.  170  240 
Attorney  Gen.  v.  Middleton,  2  Vef.  328  -  187,  194 
— — — —  V.  Price,  3  Atk.  108        -  -        187 

I  V.  Talbot,  3  Atk.  662, 673,  i  Vef. 

78  -  -  -  229, 255 

■  V.  Governors  of  Harrow  School, 


2  VeC  551  -  -  -  186 

B^K>  James,  cafe  of,  1 1  Co.  99   -    50,  55, 63, 64,  y6y  80, 

178,  179 
Baine's  cafe,  2  Ld.  Raym.  1268  '-  -        39* 

Ballard  v.  Bennet,  2  Bur.  775        -         -  -        173 

Barber  v.  Bolton,  i  Str.  314        -  -  25,  28 

Bentley 


Xiv  TABLE,    &ۥ 

PAGE. 

Bendey  v.  Bifhop  of  Ely,  Fitzg.  305,  Str.  912  103,  Z78 
Bentley,  Dr.  cafe  of,  8  Mod.  148,  Fortefc.  202, 

2Ld.  Raym.  1334,  Str.  557         -  -79 

Bilhop  of  Chichefter  v.  Harwood,  iTerm  Rep. 

650  -  -  -  i8o>  270 

Bonham,  Dr.  cafe  of,  8  Co.  117        -  •        144 

Boffiney,  alias  Tintagel,  cafe  of,  z  Str.  1003  -         37 

Bofworth  V.   Hearne^   2  Str.    1085,   Andr.  9, 

B.  R.  H.  405  -  -  -         155 

Bfti|hwaite's  cafe,  i  Ventr.  19        -  -  58,385 

Brideoak's  cafe,  i  Wilf.  209  -  -  281 

Bridgenorth,  cafe  of  BaillfFs  of,  2  Str.  808  ^  -  351 
Bruce,  Lord,  cafe  of,  2  Str.  819  -  -  53 

Child  V.  Hudfon*s  Bay  Company,  2  P.  Wms.  207  -  102 
Churchwardens  of  Chelfea  v.  Dr.  Brampton, 

3  Lev.  362  -  -  -  341 

Clark's  cafe,  i  Ventr.  327  -  -  76 

Clarke's  cafe,  5  Co.  64  •  -  .        ij;7 

Clarke  v.  Tucket,  2  Ventr.  183        -  -  168 

Clerk's  cafe,  2  Cro.  506  -  .76 

Colchcfter  V.  Seaber,  3  Bur.  1866  -  5'6>  5*7 

Cudden  V.  Eflwick,  6Mod.  123         •  -  156 

Da  Cofta  v.  Ruffian  Company,  2  Str.  783,  Fitzg.  4  352 

Daniel  Appleford's  cafe,  i  Mod.  82               -  197 

Dodwell  V.  Univerfity  of  Oxford,  2  Ventr.  33        -  106 

Dungannon,  cafe  of,  12  Co.  120,  121               -  3 

Eden  v.  Fofter,  2  P.  Wms.  325  -  -         188 

Evefbam,  cafe  of  the  Borough  of,  2  Str.  949  -  337 
Exeter,  City  of,  v.  Glide,  4  Mod.  46       -  -        73 

Fazakerly 


TABLE,     &C  XV 

PAGE. 

Fazakerlf  v.  Wiltfliire,  Str.  462         -  ,   -         1^5 

*— -—  V.  Baldoc,  6  Mod.  177         -  -        17^ 

Foot  V.  Prowfe,  1  Str.  625         -  -         .  6, 7, 370 

Garrard  V.  Rcgem,  Cro.  Jac.  531  -  -         405 

Green  v.  Mayor  of  Durham,  i  Bur.  127       -        loi,  r24 
*— —  V.  Rutherforth,  i  Vef.  462        -  .        267 

Haddock's  cafe,  Raym.  435        -  -               2, 56 

Harris  v.  Walceman,  Sayer  254         -  -        162,  170 

Harrifon  v.  Godman,  i  Bur.  12        -  -            120 

Hefketh  v.  Braddock,  3  Bur.  1847        -  -          167 

Hicks  V.  Launcefton,  I  Rol.  Abr.  514  •             4 

Ibbotfon's  cafe,  B.  R.  H.  261        •  -  -      419 

James  v.  Tutney,  Cro.  Car.  498  -  -  97 

Jehu  Webb's  cafe,  8  Co.  47        -  -  -         318 

Kinafton  v.  Mayor,  &c.  of  Shrewfbury,  2  Str. 

1051,  B.R.H.  295, 377         -  -  368 

Eirk  V.  NowiU  and  Butler,  i  Term  Rep.  118       -       105 

Lambert  v.  Thornton,  i  Ld.  Raym.  91  -  97 

Lane's  cafe,  2  Ld.  Raym.  1304,  11  Mod.  270, 

Fortefc.  275        .....        88 
Lee  V.  Wallis,  3  Bur.  1833        -  -  -    24,  28 

London,  cafe  of  City  of,  i  Co.  121  b     -     99,  139,  141, 144 

cafe  of  Chamberlain  of,  5  Co.  62  b     104,  149, 1 58 

' —  city  of,  V.  Coates,  2  Keb.  752,  i  Ventr. 

iij 169 

— — —  V.  Vanacker,  i  Ld.  Raym.  498    -       98 

Lord 


Xvi  TABLE,    &C, 

fACt4 

Lord  Hawley's  cafe,  i  Ventr.  143        -  -        8i 

Lyme  Regis,  Doug.  149  (154)  169,  (177)     56, 62, 73,  75 

Machell  v.  Nevinfon,  2  Ld.  Raym.  1355            -  20 

Mader,  &c.  of  Cordwainers  of  Exeter,  Bridg.  141  142 

Mr.  Jennings's  cafe,  5  Mod.  421        -              -  249 

Mayor  of  Colchefter  v.  Godwin,  Carter  68        -  143 

■  ■           of  Oxford  V.  Wildgoofe,  3  Lev.  293        -  106 

■  of  Winton  v.  Wilks,  2  Ld.  Raym.  11 29  14S 
Mood  V.  Mayor,  &c.  of  London,  Salk.  397  -  161 
Moore  V.  Mayor  of  Haftings,  B.  R.  H.  353,362           356 

Newlingv.  Francis,  3  Term  Rep.  189      -  -        20 

Norris  v.  Stapes,  Hob.  210  -  -  109, 136, 144,  167 
Norwich,  cafe  of  the  Mayor  of,  2  Salk.  432        -  353 

Nottingham,  cafe  of  the  Town  of,  Bui.  N.  P.  201         346 

Oldknow  V.  Wainwright,  2  Bur,  1017  "  '2,  15 

Owen  V.  St.  David's,  Skin.  45  -  -  5 

Parry  v.  Berry,  Comyn's  Rep.  269          -  lor,  134 

Patrick's  cafe,  Cro.  Jac.  528        -            -  *         405 

Pees  V.  Mayor  of  Leeds,  Str.  640          -  -          349 

Pepis's  cafe,  i  Ventr.  342  -  -  -  59 
Philips,  Mayor  of  Carmathen,  cafe  of,  3  Bur. 

1833? '836, 1838        -            -  -        24,28 

■  V.  Bury,  Skin.  447 — 512  -  -  197 — 226 
Pierce  v.  Bartrum,  Cowp.  269  -  -  105 
Player  V.  Jenkins,  cited  Skin.  381  -  150 
— —  V.  Broadnax,  1  Vent.  195         -  -            152 

Quo  Warranto  cafe,  404^  406,  407,  409,  446,  447,  449, 

47i>47S5  48i— 486,  483,  49« 

Rex 


TAB  IE,    &C.  Xvii 

PAGE. 

Rex  V.  Amery,  z  T^m  Rep.  516  and  in  Do. 

Proc.        -        -  -        98, 409>  447>  473>  49* 

V.  Aldermen  of  Heydon,  Say.  20S  -  3^1 

V.  Ballivosde  Morpeth,  i  Str.  58  .  3^^ 

V. Bcwdley,  i  P,  W.  207        -  449 

V.  Bank  of  England,  Doug.  526  (508)         -  310 

V.  Bankcs,  3  Bur.  1452,  i  Bl.  Rep.  452     42, 338, 344 
V.  Barker,  3  Bur.  1265, 1379,  i  Bl.  Rep.  330, 

35«  -  -  -  -  332 
V.  Bettefworth,  2  Str.  857  -  *  35^}  358 
V.  Biddle  arid  Tayler,  2  Ld.  Raym.  952  -  442 
V.  Binfted)  Cowp.  75  -  -  433 
V.  Bifhop  of  Cheftcr,  2  Str.  798  -  i8i,  285 
I  Wilf.   206^    I  Bl. 

Rep.  22           ...  180^271 

I  Term  Rep.  396  -        309 


ofEly,  I  Bl.  Rep.  71,  i  Wilf.  266   239, 281 
-~—  Andr.  -  -  284 

2  Term  Rep.  290  -  276 


— __.  of  Lincoln,  2  Term  Rep.  338       -  281 

V.  Blagdon,  Gilb.  Rep.  145          .           .  440 

V.  Bland,  Dr.  Bui.  N.  P.  200        -            -  345 

V.  Blooer,  2  Bur.  1043          «                •  329 

V.  Bond,  2  Term  Rep.  223        -               -  434 

V.  Borough  of  Liverpool,  1  Barnard,  K.  B.  82  317 

V.  Boyles,  2  Str.  836,  2  Ld.  Raym.  15:59      -  419 

V.  Bofcawen,  2  Bur.  IQ21,  Cowp.  537     -  "j  '5 
V.  Breton,  4  Bur.  2260           -           «          114, 418 

V.  Brown,  3  Term  Rep.  574  n             -  435 

V.  Burgum,  Andover,  i  Ld.  Raym.  710       -  62 

V.  Carmarthen,  Corporation  of,  2  Bur  869     -  491 

V.  Charles  Maiden,  4  Bur.  2130            ^  ^  49 

b  Rex 


Jcviii  TABLE,    &C, 


TAGtt 


feex  V.  Churchwardens,  &c.  of  Salop,  Bui.  N.  P. 

20I         -  -  -  -  35' 

^— — — — — — —  of  Clcrkenwell        -  3  44 

,    »     —     .  of  St.  Peter's,  Thct- 

ford,  5  Term  Rep.  364.  -■  -  310 

m,       (  of  Taunton  St. 


James,  Cowp,  413  -  -  3W 
^                      of  Weobly,  2  Str. 


«N 


1259  -  -  -  -  338 

V.  College  of  Phyficians,  5  Bur.  2740         -  336 
V.  Commiffioners  of  Llandilo diftrift,  2  Term 

Rep.  232  -  -  -  314 

—  of  the  Landtax  for  St. 

Martins,  Weftminfter,  i  Term  Rep.  146    -  317 

of  Excife,  2  Term  Rep.  381  297 


■«a^ 


V.  Corporation  of  Haflemere,  Sayer,  106  347 

of  Oxford,  B.  R.  H.  178  37»  4«> 

of  Scarborough,  B.  R.  H.  179  346 
of  Wells,  4  Bur.  1999  -  82,  87 
of  Weft  Looe,  3  Bur.  1386  -  347 
of  Wigan,  2  Bur.  782      -      346,  349 


V.  Cutbufli,  4  Bur.  2204          -                -  113 

V.  Davies,  Sayer,  241        -            -  -       437 

V.  Dawes,  4  Bur.  2120            -                  *  433 

V.  Dean  and  Chapter  of  Dublin,  i  Str.  536  -    327 

V.  Downes,  i  Term,  453          -               -  442 

V.  Epifc.  Dunelm.  i  Bur.  567            -  -      268 

V.  Everett,  B.  R.  H.  261            «               -  345 

V.  Francis,  2  Term  Rep.  484        -        -  439, 445 

V.  Franchard,  2  Str.  1149            -                -  419 

V.  Grey,  8  MefA.  358            -                -  472 

V.  Gregory,  4  Term  Rep.  240        -  -     287 

V.  Grimes,  5  Bur.  2598         -               -  44*' 

Rex 


TABLEy    &:C.  Xix 

FACE* 

Rex  V.  Grundon,Cowp.  315  -  -  247 

V.  Harris,  Dr.  3  Bur.  1421        .  -       325^  375 

V.  Harrifon,  3  Bur.  1322        -  -  i»i 

V.  Harvey,  i  Str.  547        -  -  -       427 

V.  Harwood,  2Ld.  Raynu  1405  -  376 

V.  Head,  4  Bur.  2515         -         -  -       loi,  115 

V.  Hearle,  Str.  582, 625,  627        -  -  -     440 

V.  Heaven,  2  Term  Rep.  772        -  -    75>  4^5 

V.  Hebden,  2  Str.  1109  -  -  442J 

V.  Holmes,  3  Bur.  1454        -  ■»  *  37 

V.  Howell,  B.  R.  H.  248         -  -         412,  422 

V.  Hulfton,  Str.  621  -  -  -        418 

V.  Hutchinfon,  8  Mod.  19         ^  -  89 

V.  Jonas  Maiden,  4  Bur.  2135        *  **     4^>  47^ 

V.  Jones  2  Str.  1161        -  -  -<  439 

V.  Jotham,  3  Term  Rep.  575        -  -  335 

y.  Juilices  of  Berk(hire,  Sayer,  160  -  343 

V.  Lane,  2  Ld.  Raym.  1304        -  -  379 

V.  Larwood,  Skin.  574        *  -  -         6 

V.  Latham  et  a!',  3  Bur.  1485        -  -       429 

V.  Marquis  pf  Stafford,  3  Term  Rep.  646  30^ 

V.  Marfden,  3  Bur.  181 2, 1822  ^  421 

V.  Mafter,  &c.  of    St.    Catharine's  Hall, 

Cambridge,  4  Term.  Rep.  233  -  290 

V.  Mafter,  &c,  of  the  Company  of  Surgeons, 

2  Bur.  892  -  -  *  123 

V.  Mayor  of  Bedford,  8  Mod.  34        -         -      g^  i© 

■»  e- of  Abingdon,  i  Ld.  Raym.  559      .     ^34.^ 

■■  of  Axbridge,  Cowp.  523  -  ^^j 

'> of  Bath,  6  Mod.  152         -  -        ^Sz. 

^ , —  of  Cambridge,  4  Bur.  2008.        ,  39 

"  -^      ^  2  Term  Rep.  456 

^  ^  388,  389,  39« 


XX  TABLE^    &C. 

FACE. 

Rex  V.  Mayor  of  Canterbury,  i  Str.  674  -  59 

of  Carlifle,  8  Mod.  99,  Fortefc.  200     90, 91 

"  of  Colcbefter,  2  Term  Rep.  259      -      333 

■  of  Coventry,  i  Ld.  Raym.  392      52, 59, 61 
»           of  Derby,  B.  R.  H.  153  -  93 

■  of  Doncafter,  Sayer,  39  -  387 
•—_——_—.—  z  Ld.  Raym.  1566    52, 8o>  87 


Mtas. 


of  Dover,  i  Str.  407       -  -        35^ 

■  of  Exeter,  i  Ld.  Raym.  223  -          362 
■'           of  Hedon,  i  Wilf.  245        -  438,  440 

■  of  Kingfton  upon  Hull,    i   Str. 

578           .             -                -  -           342 

I  of  Leicefter,  4  Bur.  2687  -            73 

m           of  Liverpool,  2  Bur.  732  -             65 

of  London,  2  Term  Rep.  177  -         323 

"   ■■  I  Term  Rep.  423  -         336 

■  >  ■'         2  Term  Rep,  177  -        337 


-  of  Lyme  Regis,  Doug.  79  -           386 

-  of  Lynn,  Andr.  105               -  381 

-  of  Newcaftle,  Bui.  N.  P.  207  *         377 

B.  R.  H.  155  -          89 


of  Norwich,  Str.  55  -  348 

———————  2  Salk.  436,   2  Ld. 


Raym.  1244  -  -  -  389 

-^ ^  of  Nottingham,  Say  36        -  3S^i  i^9 

— • of  Rippon,  2  Salk.  433        -  -      347 

■  of  Rye,  2  Bur.  798  -  -         353 

—  of  Thetford,  2  Ld.  Raym.  848       -       362 

of  Tregony,  8  Mod.  in  -  349 

ofYork^5  Term  Rep.  66, 73  -  360, 361,  388 

v.  Mein,  3  Term.  Rep.  596        -  435,  437,  444 

V,  Monday,  Cowp.  530  r  -  H 

Rex 


T  A  B  L  E^    &C.  xxt 

PAGE. 

Rex  y«  Morgan,  2  Str.  1042      -  .  «       ^22 

V.  Mortlocke,  3  Term  Rep.  300     ^  -  -      ^^^ 

V,  Newland,  Sayer,  96  -  •  ^3^ 

V.  Newling,  3  Term  Rep.  310  -  -  430,435 
V*  Newiham,  Sayer,  211  -  •  ^g 

V.  Owen,  Skin.  669,  5  Mod.  314  «  3^4,  ^60 
V.  Pafmore,  3  Term  Rep.  199  -  -  4^$)  51^ 
V.  Peacock,  4  Term  Rep.  684        -  -         ^^^ 

V.  Philips,  I  Str.  394,  397         -  *  442 

V.  Ponfonby,  Sayer,  245,  5  Brown's,  P.  C. 

287  -  -  -  -      75,426 

V.  Poole  B.  R.  H,  27  -  -  ^^ 

V.  Powell,  8  Mod.  165        -            -  ,        .jg 

V.  Pyke,  8  Mod.  286           -  -            428 

V.  Reynell,  3  Bur.  1422          -  .            «^2 

V.  Richardfon,  i  Bur.  517            -  53, 66, 68, 93 

V.  Robert  Reeks,  2  Ld.  Ray^.  1445  -          441 

V.  Robins,  2  Str.  1069        -  -           44- 

V.  Robinfon,  i  Str.  555              "  .            ^0 

V.  Roger  Philips,  i  Bur.  292        -  -           46 

V.  Smart,  4  Bur.,  2241        -            .  *         4^ 

V.  Sir  Gilbert  Heathcot,  Fortefc.  283  -         310 

V.  Sir  Henry  Penrice,  2  Str.  1235  -           j^S 

V.  Sir  Thomas  Reynell        -           -  -        415 

V.  Smith,  3  Term  Rep.  573         -  .         434 

V.  Symmons,  4  Term  Rep.  223  -  434 
V.  Sympfon,  1  Str.  608,  2  Ld.  Raym.  1379, 

8  Mod.  325         -                .  .            mj2 

V.  Spencer,  3  Bur.  1827 — 1840           -  29,  30 

V.  Spearing,  1  Term  Rep.  4  n           -  437,  443 

V.  Stanton,  Yelv;  190        -           -  -      408 

•V,  Stephens,  i  Bur.  433        -           7  -        437 

Rex 


Xxii  TABLE,    &C. 


PAGE. 


Rex  V.  Taylor,  3  Salk,  231            -             -  57,  65 

V.  Tucker,  3  Bur.  1835            -  -           %S 
V.  William  Wallis   and  William    Barrs, 

5  Term  Rep.  375        -              -  -.         424: 

V.  Walter  Erie,  Gent.  2  Bur.  1197  -           315 

V.  Ward,  2  Str.  879        ^               -  37*>  357 

—— 2  Str.  893        -            -  -           324 

V.  Whilkin,  Andr.  i        -               -  SS^y  3^0 

V.  White,  2  Ld.  Raym,  1379        -  -        375 

V.  Whitwell,  5  Term  Rep.  85        -  -        427 

•  V.  William  Rogers,  4  Bur.  2523        -  *       430 

-V.  Williams,  Sayer,  140        -  •            382 

y.  Williams,  i  Bur.  402       -           -  -        42a 

V.  Williams,  Mayor  of  Helftone,   i  Str. 

677        -               -               -               -  4*9 

V.  Williams,  i  Bur.  402, 408         -            -  438 

V.  Willis,  Andr.  279           -                  -  43 

V.  Windham,  Cowp.  378            -               -  263 

V.  Withers,  2  Bur.  1020,  Cowp.  537       -  i2>  15 
Rex  et  Reg.  v.  St.  John's  College,  4  Mod. 

260  -  -  248, 2771  3S4»  360, 362 

Robinfon  v.  Grofcourt,  5  Mod.  104              -  116 

St.  John's  College  V.  Toddington,  i  Bur.  158 

I03>  235>  *S5 
Scarborough  Corporation,  cafe  of,  2  Str.  1 1 89        -        40 

Serjeant  Whitaker's  cafe,  2  Ld.  Raym.  1238    -        82,  83 

Sir  James  Smith's  cafe,  4  Mod.  52,  Skin.  295, 

I  Show.  263,  Carth.  217  -  407,  474,  513 

Sir  Thomas  Earle's  cafe,  Carth.  173        ~  ^  yj 

Sir  William  Lowther's  cafe,  2  Ld.  Raym.  1409      r-      ^ig 

Smith's  cafe,  2  Str.  892        -  ^  -        338 

Stevenfon 


TABLE^   &C.  XXiii 

FAGB. 

Stevenfon  v.  Mayor  of  Appleby,  2  Ld.  Raym.  1353  444 
Sutton's  Hofpital,  cafe  of,  10  Co.  13,  &c.     -        194,  195 

Taylor  v»  Mayor  of  Bath,  Cowp.  537    -        -  12,  ij 

Taylors  of  Ipfwich,  cafe  of,  11  Co.  53         -  I3^>i44 

Tidderley's  cafe,  i  Sid.  14        -            -^           .  53 

Totterdell  and  Harris  v.  Glazby,  2  Wilf,  266  159 

Ufher's  cafe,  5  Mod.  452        «  •  -         279 

Vaughan  v.  Company  of  Gunmakers^  London, 

6  Mod.  82               -               -                -  318 

■               V.  Lewis,  Carth.  227         ,              -  75 

Vintner's  Company  v.  Paffey,  i  Bur.  235          -  158 

Walker,  Dr.  cafe  of,  B.  R.  H.  212        «        279,  283,  355 

Waltham  v.  Auftin,  8  Co.  125         -               -  1 10 

Walton  V.  Clerk,  Carth.  75  -  -  171 
Wannel  v.  Chamberlain  of  London,  Str.  675, 

8  Mod.  267          -                -                -  117 

Warren's  cafe,  2  Cro.  540  -  -  60 
Weavers  of  London,  Corporation  of,  v.  Brown, 

I  Cro,  803         -            -               -            -  141 

Winchelfea  Caufes,  4  Bur.  1962,  2022,  2120        «  430 

WooUey  v.  Idle,  4  Bur.  195 1         ^               -  149 

Wright  V.  Fawcett,  4  Bur.  2041          -           -  388 

Yates's  Cafe,  Style,  477, 480         -  -  52, 89 


TREATISE 


ON   THE 


LAW  OF  CORPORATIONS. 


CHAP.    III. 


OF  CORPORATIONS  CONSIDERED  IN  RESPECT  TO  THEIR 

I 

INTERNAL  CONSTITUTION. 


Section  VIII. 


Of  EleJ^ions  in  Corporations. 

Where  a  colleaivc  body  of  men,  having  one  common 
intereft,  find  it  neceflary  to  delegate  the  management  of 
their  affairs  to  particular  individuals,  the  appointment  of 
thofe  individuals  muft,  previous  to  any  particular  confti- 
tution,  naturally  and  neceflarily  be  by  the  election  of  all 
the  members  of  the  community ;  fo  that,  where  a  corpo- 
ration has  grown  up  by  length  of  time,  without  a  charter. 
Vol.  II.  B  .  of 


2  r  H  E     L  A  W 

of  which  there  are  numberlefs  inftances,  though  in  every 
fuch  cafe,  by  ftftion  of  law,  a  charter  is  fuppofed,  we  may 
conclude  that  originally  all  eledlions  were  made  by  tHe 
body  at  large  :  and  however  it  might  be-found  convenient 
to  delegate  to  the  heads  of  the  corporation,  when  fo  chofen^ 
the  appointment  to  the  mere  minifterial  offices,  it  feems 
difficult  to  explain  how  the  appointment  of  the  beads 
themfelvcs  fhould  have  come  to  be  in  the  power  of  any  fe- 
h&  body  :  yet,  in  fa»5l:,  we  find  that  in  many  corporations 
by  prefcription,  the  body  at  large  has,  by  long  continued 
CuHom,  Been  totally  excluded  from  a  voice  in  the  choice 
of  the  principal  members  (<?).  And,  where  it  is  not  im- 
probable, that  the  right  of  election  had  continued  long  in. 
its  original  and  natural  chaimel^  we  find  not  a  few  in- 
ftances of  its  being  abridged  by  fubfeqent  charter,  and 
the.  whole  power  of  the  corporation  thrown  into  the  bands 
of  a  feie<a  body  (b). 

In  corporations  by  prefcription,  the  time  and  manner  of 
ele(51;ion,  and  the  qualifications,  both  of  the  electors  and  of 
the  perifohs  to  be  elefied,  depend  principally  on  cuftom ; 
and  in  corporations  by  charter,  on  the  provifions  of  the 
charter.— But  it  has  been  faid  (f ),  tliat  if  a  charter  by 
which  a  corporation  is  erected  make  no  expreis  provifion 
for  continuing  the  filcceffion,  the  corporation  will  be  dif- 
folved  on  the  death  of  the  firft  members  of  the  governing . 
part,  as  if  a  charter  ereft  a  corporatfori  to  confift  of  a 
mayor,  twelve  aldermen  and  commonalty,  and  nominate 
the  firft  mayor  and  aldermen,  but  lay  nothing  about  the 
eleitibh  of  a  new  mayor  and  aldeirmen  on  the  death  of  the 
old;  In  fuch  i  cafe,  it  is  faid,  there  can  be  lio  new  eledion. 


(a)  Vid,  Miller  on  Gdvemment,  4:04,  405. 

(^)  Vid.  Haddbck's  cafe,  R^ym.  455.'       (,0  Tid.  jMod.  »3- 

bttt 


OFCORPORATIONS.  3 

butwhen  the  mayor  and  aldermen  die  the  corporation  will 
be  difiolved. 

This  opinion  feems  to  have  arifen  from  a  note  at  the 
end  of  thecafeof  Dungannon,  in  Ireland,  reported  .in  that; 
book  of  reports  which  is  known  by  the  name  of  Sir  Edward 
Coke's  t\yelfth  report  (tf).      The  King  conftituted  the 
town  of  Dungannon  a  free  borough,  and  further  "  willed, 
declared,  and  ordained,  that  the  inhabitants  of  the  town 
aforefaid  fliould  be  onq  body  corporate,  by  the  name  of 
Provoft,  twelve  Burgefles  and  Commonalty  of  Dungan- 
non, and  by  the  fame  name  might  implead  j  and  that  they, 
the  aforefaid  provoft  and  burgefles,   and  thir  fuccejfors^ 
fliould  have  the  power  of  elefting  two  burgefles  to  parlia- 
ment:"— The  queftion  fubmitted  to  the  judges  on  this 
cafe  was,  whether  this  grant  of  eleftion  of  burgefles  to 
parliament  was  good,  becaufe  the  po\ver  was  given  to  the 
provoft  and  burgefles,  who  were  part  of  the  corporation 
only,  and  not  to  the  provoft,  burgefles  and  commonalty 
at  large. — The  reporter  is  not  (atisfied  with  ftating  the 
opinions  and  deciflon  of  the  judges  on  this  queftion  3  but 
adds  from  himfelf,  '^and  note,  all  the  new  corporations 
were  of  the  fame  form,  and  in  none  of  then>  is  any  claufe 
to  ele<a  new  burgefles,  fo  that  when.tbofi  of  the  mod^n  i^ur.-- 
gejfps  dify  this  power  to.  elefi  hurgeffes  /j.^cw."— That  is, 
the  power  to  elefl  ^urgefles  .to  ferye  in  p^rlianjent  is  gone 
after  the  death  of  the  burgefles  appointed  by  the  charter  5 
from  which  he  manifeftly  intimates,  that  the  corporation 
had  no  power  to  eleft  new  burgefles  in  the  room  of  any  of 
the  twelve  w;ho  fhould  happen  to  die*     . 

How  this  is  to  be  reconciled  with  the  maxim,  ^*  that  it 
is  neceflarily  and  infeparably  incident  to  every  corporation 
to  have  perpetual  fucceflion,  and  that  therefore  all  aggregate 

{a)  i»  Co.  120,  I2X. 

B  2  corporations 


r 


4  T  H  E      L  A  W 

« 

corporations  have  a  power,  necejfarily  impliedy  of  eleding 
members  in  the  room  of  fuch  as  are  removed  by  death  or 
otherwife"  (j),  Jt  is  difficult  to  fay ;  and  yet  this  maxim 
fias  generally  obtained,  and  the  cafe  in  which  it  appears  to 
have  been  firft  laid  down,  has  been  confidered  as  authority. 
This  is  the  cafe  of  Hicks  againft  the  town  of  Launcefton, 
which  is  reported  in  Roll's  (h)  abridgment,  in  words  to 
this  efFcift:  **if  the  King  create  a  coporationof  a  mayoi* 
and  eight  aldermen,  with  a  claufe  in  the  charter,  that  on 
the  death  or  removal  of  any  of  the  aldermen,  the  mayor 
and  other  aldei-men,  or  the  major  part  of  them,  may,  within 
eight  days  next  after  the  death  or  removal,  ele<5l  another 
alderman  in  his  place ;  in  fuch  a  cafe,  though  no  eleAion 
Be  made  within  eight  days  after  the  death  of  an  alderman, 
yet  they  may  eledt  one  at  any  time  afterwards,  fdr  the 
power  of  eleSiion  is  incident  to  the  corporation^  and  ancient 
corporations  have  no  fuch  claufe  giving  power  to  eledl,  and 
this  affirmative  power  to.eleft  within  eight  days,  does  not 
take  away  the  power  implied  as  incident  to  the  corporation." 
It  is  to  be  obferved,  that  the  whole  corporation  in  this 
cafe,  as  it  is  here  put,  confifts  of  the  mayor  and  eight  al- 
dermen only^  and  has  no  othbr  component  parts ;  on  which 
fuppofition  the  incidental  poWdr  of  election,  if  it  exift  at 
all,  is  properly  attributed  to  the  maydr  and  fiirviving  alder- 
men.— But  if  the  corporation  had  been  ftated  to  confift  of 
a  mayor,  eight  aldermen  and  commonalty,  and  the  power 
of  eleftioa  given  to  the  two  firft  component  parts,  exclu- 
five  of  the  commonalty,  I  apprehend  the  maxim  would 
have  been  mifapplied;  becaufe,  if  the  power  of  election  be 
incident,  it  muft  be  incident  to  the  whole  corporation,  and 
not  to  a  fele£t  body. 

{d)  Vid.  vol.  I,  p.  69. 

ib)  I  Rol.  514.    Vid.  the  fame  cafe  cited  as  to  another  point,  vol.  x. 
p.  s^^* 

That 


Of    CORPORATIONS.  5 

/ 

\ 

That  it  h  incident,  there  is  little  doubt,  both  from  the 
nature  of  the  thing  and  the  authority  of  this  cafe^  notwith- 
ftanding  the  di^um  before  mentioned  to  the  contrary :  But  it 
feldom  happens  that  it  can  be  put  in  execution,  becaufe 
corporations  by  charter  being  the  mere  creatures  of  the 
charters  which  conftitute  them ;  and  corporations  by  pre- 
fcription  being  regulated  by  long  continued  ufage,  which 
is  equivalent  to  a  charter,  the  power  of  eleflion  muft 
be  exercifed  under  the  modifications  of  thq  charters  or  'the 
ufage;  and  in  moft  corporations  of  both  kinds,  both  the 
power  of  eleSion  and  the  capacity  of  being  eleSed  are 
confined  to  perfons  of  a  particular  defcriptionj  fo  that 
when  by  accident  there  is  no  longer  a  fuiHcient  number  of 
thefe  perfons  to  make  a  regular  eledUon,  the  power  of  elec- 
tion is  gone. 

There  cannot  properly  be  any  eledlion  to  an  oiEce 
which  is  not  actually  vacant ;  though  it  may  be  a  pradlice 
in  fome  places  to  choofe  a  perfon  before  hand,  which  may 
be  called  an  inceptive  election,  and  on  the  death  of  the 
predeceflbr,  to  admit  the  perfon  before  nominated,,  which 
completes  the  eledlion :  but  fuch  an  inceptive  eleftion  is 
not  binding  on  the  eledors :  and  when  the  vacancy  really 
happens  they  may  ele£{  another. 

Dr.  Owen  applied  for  a  mandamus  to  be  admitted  ^ 
prebendary  in  the  church  of  St.  David's,  and  fet  forth  a 
cuftom,  that  the  prebendaries,  when  all  the  places  were 
full,  ufed  to  choofe  a  fupernumerary,  who  on  the  death  of 
the  next  prebendary  was  admitted :  he  ftated  that  he  was 
chofen  a  fupernumerary  in  the  year  1658,  that  A.  B.  one 
of  the  prebendaries,  was  fince  dead,  and  that  Dr.  Stainoe 
was  admitted  inftead  of  himfelf. — The  court  held  the  cuf- 
tom  to  be  nugatory  and  void  i  ^nd  would  grant  no  manda.- 
mus  on  the  principles  above  ftated  {a). 

{a)  Skin.  45. 

B  3  If 


6  THE    -LAW 

If  the  eIe£bion  of  a  particular  o^ccr  be,*  by  ancient 
charter,  vefted  in  one  body,  a  fubfequent  one  cannot  of  it- 
felf  alter  the  mode  of  eleftion;  but  if  Ithe  fubfequent  char- 
ter be  accepted  by  the  corporation  at  large,  or  if  they 
acquiefce  under  it,  and  a£l:  in  conformity  to  It,  which  is 
evidence  of  acceptance,  the  latter  mode  of  election  is 
valid. 

By  a  charter  of  Henry  4,  it  was  granted,  that  the  may- 
or, aldermen,  and  citizens  of  Norwich,  might  ele<Sl  two 
to  be  (heriffs  of  that  city:  Charles  the  lecond,  in  the 
18th  year  of  his  reign,  by  his  charter  granted,  that  the 
mayor  and  aldermen  might  ele£k  one  flierifF,  and  the  citi- 
zens the  other. — The  fubfequent  ele<Siions  were  made  ac- 
cording  to  the  provifions  of  the  latter  charter,  and  were 
held  good  by  the  opinion  of  two  juftices  againft  one  {a). 

The  privilege  of  elecSlion  may  be  in  one  body,  and  the 
privilege  of  approbation  In  another :  thus  the  privilege  of 
cle£Hon  to  the  office  of  alderman  in  London  and  in  Nor- 
wich is  in  the  ward,  and  that  of  approbation  in  the  mayor 
and  aldermen :  but  if  the  mayor  and  aldermen  rejeft,  with- 
out  reafon,  one  chofen  by  the  ward,  a  peremptory  manda- 
mus will  be  granted  to  admit  him  (i). 

It  has  been  feen  (f),  that  where  there  is  no  claufe  en- 
abling the  mayor  exprefsly  to  hold  over,  that  powef  is  not 
incident  to  his  office :  in  this  refpefl  he  diiFers  from  thofe 
ofKcers  who  are  ufually  chofen  for  life,  but  may, he  direfted 
to  be  chofen  annually ;  for  in  this  cafe,  if  there  be  no  elec- 
tion at  the  end  of  the  year,  the  former  are  to  continue  till 
others  be  chofen. — In  the  cafe  of  Truro,  in  Cornwall  (i),  • 

{a)  Skin.  574,  5,  7.  Holt,  C.  J.  being  one  of  the  two.  Vid. 
vol.  I.  p.  67,  68.  (h)  Vid.  z  Salk.  43^. 

(f)  Vid.  vol.  I.  p.  376. 
{d)  Foot  V.  Prowfc,  mayor  of  Truro.    1  Str.  6*5. 

the 


OfCORPORATIONS.  7 

the  mayor  was  to  be  choiien  out  of  the  aldermen,  who  were 
i$  be  annually  chofen :  on  a  trial  at  bar,  on  the  queftion  of 
the  validity  of  the  defendant's  eledtion  to  the  office  of 
mayor,  it  appeared,  that  the  aldermen  prefent  at  the  elec- 
tion had  been  aldermen  for  feveral  years,  and  that  none  of 

them  had  been  re-ele6led  within  a  year  before :  on  a  bill 

,  .... 

of  exceptions,  the  court  were  of  opinion,  that  the  election 
of  the  mayor  was  void  for  want  of  an  annual  cleftion  of  the 
aldermen.  But  on  a  writ  of  error  brought  \u  the  Exche- 
quer chamber,  after  two  folemn  arguments  the  judgment 
was  reverjed,  on  the  principle,  that  the  words  "  to  lie  an- 
nually chofen"  were  only  direflory,  and  that  an  annual 
election  of  them  was  not  neceflary  to  make  an  ele«flion  in 
their  prefence  good;  and  the  Chief  Jufticc  of  the  Common 
Pleas,  who  delivered  the  opinion  of  the  court,  compared 
this  cafe  to  that  of  a  conftable  and  other  annual  oiHcers. 
who  are  good  officers  after  the  year  is  expired,  until  ano- 
ther be  eledled  and  fworn.  And  this  reverfal  was  affirmed 
in  parliament. 

Where  Che  number  of  eleftors  is  indefinite^  and  fome 
perfons  who  are  unqualified  vote  in  the  election ;  on  the 
want  of  qualification  being  difcovered,  it  would  feem  that 
the  bad  votes  ought  to  be  Vejedied,  and  t|ie  eledlion  to  be 
decided  according  to  the  majority  of  good  votes/  It  feenis 
likewifethat  when,  by  the  conftituti on  of  the  corporation, 
•the  candidates  to  be  put  in  nomination  are  not  limited  to  a 
particular  number;  if  fome  be  qualified  and  fo^ne  unqua- 
Iffied,  and  fome  of  both  kinds  be  chofen,  the  eleclion  is 

good  as  to  thofe  who  are  qualified,  and  void  only  as  to  the 

.  »     ■•         ,     '         .      .       .      ' 

others.— But  where,  by  the  conftitution,  ^e  number  of 

'  ♦      •  '    ^  •     . . 

eled^ors  is  limited,  and  in  that  limited  number  there  are 

•  *  ■       ■    .  •  - 

fome  who  vote  without  being  qualified,  it  would  feem,  from 
the  reafoji  of  the  thing,  that  the  eleSion  is  void  for  the 

B  4  whole; 


8 


THE    LAW 


whole ;  unlefs  there  be  fo  many  good  votes  for  the  candi* 
date  chofen,  as  would  conftitute  a  majority  of  the  whole 
limited  number.— Where  the  number  of  candidates  is 
limited,  there  feems  ftill  ftronger  reafon  why  the  election 
fbould  be  void  for  the  whole,  where  there  are  Unqualified 
candidates,  even  if  none  of  the  latter  be  chofen  i  for,  per- 
haps>  had  there  been  no  unqualified  candidates,  others 
might  have  been  chofen  in  preference  even  to  thofe  of  the. 
candidates  who  were  duly  qualified. 

The  town  of  Bedford  is  a  borough  by  prefcription,  and, 
time  out  of  mind,  on  the  Monday  next  after  Bartholo- 
mew day,  there  had  been  put  in  nomination  twenty-fix 
burgefles,   who  were   to  choofe  from  among  themfelves 
thirteen  for  common  councilmen,  which  common  council- 
men,  when  chofen,  had  votes  at  the  election  of  the  mayor 
and  other  officers  of  the  borough : — Here  the  number,  both 
of  the  electors  and  candidates,   was  limited  to  the  num- 
ber of  twenty-fix  burgefles : — One  Benfon,  who  was  a 
freeman  but  not  a  burgefs,  was  put  in  nomination  with 
twenty-five  others,  who  were  duly  qualified  as  burgefles, 
and  was  chofen  to  be  one  of  the  thirteen  common  council- 
men. 

On  finding  that  Benfon  was  not  qualified  to  be  one  of 
the  twenty-fix,  the  mayor  proceeded  to  a  new  eleftion, 
and  one  Devereux  was  chofen  in  the  room  of  Benfon : 
Hughes,  who  ^a§  one  of  the  twenty-five  burgefles  put  in 
nomination  with  Benfon,  and  next  to  him,  had  moft  votes 
for  the  office  of  common  councilman,  profecuted  an  in- 
formation againft  the  mayor  and  the  twelve  common  coun- 
cilmen, as  not  being  chofen  by  twenty-fix  qtialified  bur- 
geflTes  (a)  -,  and  it  was  infifted,  either  that  the  whole  elec-. 
tion  was  void,  or  that  if  it  was  not,  yet  Hughes,  the  per- 


{a)  There  muft  be  fome  miftake  in  the  report  in  this  place. 


fon 


)*-. 


OFCORPORATIONS.  9 

fon  who  had  the  greater  number  of  votes  after  Benfon,  was 
duly  eleSed,  and  the  fubfequent  eleflioh  of  Devereux  was 
void. 

In  fupport  of  the  firft  propofition  it  was  faid,  that  where 
by  the  cuftom  of  the  place  a  determinate  number  of  per- 
fons  are  to  choofe,  or  the  olG&ion  is  to  be  made  on  a  par- 
ticular day ;  if  it  be  not  made  on  that  day,  or  not  by  that 
number  of  perfons  properly  qualified,  or  any  one  not  qua- 
lified be  chofen,  the  eledlion  is  altogether  void,  and  not,  in 
the  lajtter  cafe,  as  to  the  unqualified  perfon  alone :  and  a 
difiindlion  was  taken  between  difabilities  apparent  at  the 
time  .of  the  nomination,  and  fuch  as  might  not  be  difcove^ed 
till  afterwards,  as  where  the  perfon  choien  had  not  received 
the  facrament  within  the  year;  for  fuch  difabilities  not 
being  known  at  the  time  of  the  ele£lion,  it  might  perhaps 
be  unreafonable,  on  that  account,  to  confider  the  ele(5lion 
as  totally  vM  from  the  beginning :  but  it  was  contended, 
that  in  the  principal  cafe,  it  was  in  their  power  to  be  duly 
informed  of  the  truth,  becaufe  they  had  all  the  borough 
books  in  their  cuflody,  and  ignorance  could  be  no  excufe, 
where  they  had  all  the  means  of  information  in  their 
power. 

The  Chief  Juftice  and  two  of  the  other  judges  declared, 
that  what  was  infifted  on  by  this  motion  for  the  profecutor, 
,  would  introduce  great  inconvenience;  ibr  if  this  ihould  be 
adjudged  a  void  election  as  to  the  whole,  then  the  borough 
>vould  be  deftroyed,  becaufe  there  could  not  be  another 
mayor,  nor  could  any  thing  be  done  by  common  council- 
men.— They  held,  therefore,  that  if  fome  candidates  un- 
qualified, ^s  Benfon  was,  were  put  in  nomination  with 
thofe  who  were  qualified,  as  the  other  twenty-five  were, 

and  an  unqualified  perfon  was  chofen,  as  Benfon  likewife 

was. 


lO  T  H  E      L  A  W 

was,  the  eledlon  was  void  as  to  him  only,  and  not  as  to 
the  others  who  were  duly  qualified. 

But  the  other  judge  faid,  it  was  not  clear  to  him  how 
thirteen  common,  councilmen,  who,  by  the  cuftom  of  the 
place,  were  to  be  chofcn  out  of  twenty-fix  qualified  bur- 
gefles,  could  be  lawfully  phofen  out  of  twenty- five,  and 
that  they  might  as  well  be  chofen  out  of  any  other 
number,  if  the  cuftom  were  once  broken  through :  he 
was  of  opinion,  however,  that  if  the  eledlion  was  good 
at  all,  Hughes,  who  had  the  greateft  number  of  votes  of 
the  twenty-five  burgefies  duly  qualified,  next  to  Benfon, 
was  duly  chofen. 

The  court  not  being  unanimous  in  their  opinion,  the 
rule  was  enlarged  as  to  Devereux,  the  perfon  elefted  by  a 
fubfequent  eledlion  ia\  and  difcharged  as  to  |:he  reft,  and 
afterwards  the  queftion  was,  whether,  if  a  perfon  unqua- 
lified were  chofen  by  a  majority  of  good  votes,  and  his 
cleftlon  fet  afide  for  want  of  qualification,  the  perfon  pro- 
perly qualified,  who  had  the  greateft  number  of  votes  next 
to  him  who  was  unqualified^  &ould  be  adjudged  duly 
<:hofen,  ot  whether  there  muft  be  a  new  eleSion  ? 

The  court  held  the  new  election  to  be  good>  as  wdl  on 
account  of  the  circumftance,  that  it  was  not  known  at  the 
time  that  Benfor\.was  not  qualified,  as  to  avoid  what  they 
conceived  to  be  an  incurable  in^onveniency. 

The  inconveniency  to  which  they^luded,  was  the  dif- 
JCpIution  of  the  corporation,  though  it  be  difficult  to  con- 
ceive how  that  could  be  the  confequence  of  deciding  in 
favour  of  Hughes,  any  more  than  that  of  deciding  in  fa- 
vour of  Devereux,  becaufe  in  either  cafe  the  number  of 
common  councilmen  would  have  been  complete. 

(a)  Here  is  another  proof  of  the  inaccuracy  of  the  report  of  this 
cafe. 

This 


OF    CORPORATIONS.  II 

This  cafe  is  different  from  thofe  cafes  in  general  where 
the  power  of  ele£lion  is  in  a  feleft  body,  and  therefore  the 
rules  which  prevail  in  the  latter,  cannot  with  propriety 
be  applied  to  the  former. — ^In  general,  it  is  fufficicnt  if  the 
majority  of  the  feledl  numl)er  be  duly  affembled ;  but  here, 
oy  the  very  nature  of  the  cuftom,  it  would  leem  that  no 
number  lefs  than  the  twenty-fix  can  proceed  to  the  elec- 
tion at  all  J  the  nomination  of  that  exaft  number  is  a  necef- 
fary  preliminary  to  the  election :  fuppofe  only  twenty-five 
had  been  a<Slua]ly  nominated,  could  it  have  been  contended 
that  an  ele&ion  by  thefe  was  in  purfuance  of  the  cuftom  ? 
If  it  could  not,  it  feems  difficult  to  defend  the  judgment 
of  the  court :  for  the  circumftance  of  one  of  the  perfons 
nominated  being  unqualified,  renders  the  cafe  the  feme  in 
eiFedl  as  if  no  more  than  twenty-five  had  been  nominated. 
But  the  court  went  upon  the  ground  of  the  inconveniency 
that  would  enfue  from  determining  the  eledlion  to  be  void; 
a  circumftance  which  ought  to  be  of  no  weight  againft  the 
manifeft  conclufion  from  the  nature  of  the  cafe. 

Had  the  want  of  qualification,  in  Benfon  been  known 
at  the  time  of  the  eledtion,  the  decifion  in  this  cafe  would 
alfo  have  been  direflly  contrary  to  the  authority  of  other 
caies  on  the  fame  point,  even  on  the  fuppofition  that  the 
firft  ele6lion  was  only  void  as  to  Benfon  bimfelf:  for  it  has 
been  frequently  decided,  that  where  a  perfon  ele<Sled  is  un- 
qualified, and  the  ele£lors  at  i\ie  time  have  notice  of  the 
want  of  qualification,  their  vo.tcs  to  him  will  be  thrown 
away ;  therefore  the  perfon  whp  has  the  next  greater  num- 
ber to  the  unqualified  perfon,  as  Hughes  had  in  this  ca(e, 
is  to  be  confidered  as  duly  eledled  (a). — The  firft  cafe  on 
this  point  is  that  of  the  Queen  and  Bofcawen  {h) :  there 

(a)  Vid.  Cowp.  536. 

{bj  Pafch.  13  Ann.  B.  R.  cited  1  Bur.  1021^  and  Cowp.  537.. 

ten 


It  THE     LAW 

ten  voted  for  Roberts,  who  was  a  qualified  perfon,  and  tea 
for  the  defendant,  who  was  unqualified  on  account  of  non- 
inhabitancy.  Lord  Chief  Juftice  Parker,  and  the  whole 
court,  held  that  the  votes  given  for  the  latter  were  thrown 
away,  tind  Roberts  duly  eledled.  I'his  was  the  cafe  of 
an  equal  number  i  but  the  fame  principle  applies  to  tne  cafe 
of  a  minority.  In  the  cafe  of  the  King  and  Withers  {a)y 
five  voters  out  ,of  eleven^  voted  for  the  defendant  upon  a 
fmgle  vacancy  of  a  burgefs  for  the  borough  of  Wcftbury : 
fi.x  others  voted  for  two  perfons  jointly :  and  the  court  held 
that  the  double  votts  were  abfolutely  thrown  away.  So, 
in  the  cafe  of  'Taylor  againft  the  mayor  of  Bath  (^J, 
tw&nty-eight  eleftors  being  aflembled,  fourteen  voted  for 
A,  thirteen  for  B,  and  one  for  C.  A,  who  had  the  four- 
teen votes,  was  unqualified,  and  his  incapacity  known  to 
the  ele£lors  at  tlie  time,  Lee,  Chief  Juftice,  in  his  direc-* 
lion  to  the  jury  faid,  that  the  votes  given  to  A,  with  notice 
of  his  incapacity,  were  thrown  away.  It  afterwards  came 
before  the  court,  when  Lee  compared  it  to  the  cafe  of 
voting  for  a  dead  man,  and  held  that  B,  who  had  the  thir- 
teen votes,  was  duly  eleded:  and  Mr.  Juftice  Page  faid, 
that  in  fuch  a  cafe,  a  minority  of  two  only  would  have 
been  fufficient  to  ele£l  the  other  candidate. 

Where  a  candidate  is  propofed  in  a  corporate  meeting, 
duly  aflembled,  and  a  majority  of  the  perfons  aflembled 
protefl:  againft  any  elediion,  and  do  not  propofe  any  other 
candidate,  the  minority  may  eled  the  candidate  propofed. 

In  the  cafe  ofOldknbw  and  Wainwright(f),  it  appeared 
by  a  fpecial  verdid,  that  the  right  of  elefiing  a  town  clerk 
of  the  town  of  Nottingham  was  in  the  mayor,  aldermen^  ^ 

(«)  Pafch.  %  G.  2,  B.  R.  cited  2  Bur.  1020.    Cowp.  537. 
(>)  Mich.  IS  G.  2,  B.  R.  cited  Cowp.  537. 
(0  2  Bur,  1017, 

and 


OFCORPORATIONS.  IJ 

and*  common,  council ;  that  the  whole  numter  of  elc63:ors 
was^  twenty-five, 'and  that  the  votes  were  all  equal ;  that 
out  of  that  number  twe/ity-one  aflembled  on  the  26th  of 
May,  in  ,  confequence  of  a  regular  fummons ;  that  the 
mayor  put  Thomas  Seagrave  in  nomination  ;  and  that  no 
ether  perfon  was  propofed :  that  nine  of  the  twenty- one 
voted  for  Seagrave ;  that  the  other  twelve  did  not  vote  at 
all;,  but  eleven  of  them  protefted  againft  any  election  at 
that  tinle,  becaufe  they  alleged  the  office  was  already  filled 
by  one  Foxcroft,  whofe  right  was  then  under  litigation ; 
that  ten  figned  a  written  protcft  to  this  purpofe,  and  that 
another  did  not  fign  nor  vote,  but  declared  that  he  i\i£* 
pencled  doing  any  thing  :  and  that  the  mayor  declared! 
Seagrave  duly  eletSled,  who  took  the  oaths  of  office,  and 
the  other  requifite  oaths,  in  due  manner  and  form« 

In  fupport  of  this  eleftion  it  was  contended,  that  this 
proteft  againft  any  election  at  all,  was  not  a  negative  either 
exprefTed  or  implied  againft  Seagrave ;  and  that  as  no  other 
perfon  was  propofed,  and  nine  voted  for  him,  and  none 
againft  him,  he  was  well  elefted :  that  if  the  proteftors  had 
gone  away  and  left  the  afTembly,  it  would  have  made  no 
difference,  after  the  bufinefs  was  once  begun:  and  that  it 
did  hot  appear  that  the  protefters  would  not  have  voted  for 
Seagrave,  j^they  had  voted  at  alL 

Lord  Mansfield  faid  he  faw  no  doubt  In  this  cafe.  Here 
was  an  aifembly  duly  fummoned;  one  candidate  was 
named;  no  other  was  named;  the  poll  was  taken;  ihef 
had  no  right  to  ftop  in  the  middle  of  the  ele£tion,  nor 
could  the  protefters  ftop  the  eleSion  of  Seagrave,  when 
once  entered  upon,  in  any  other  way  th^  by  voting  for 
fome  other  perfon,  or  at  leaft  againft  him:  whereas  here 
they^  had  only  protefted  againft  any  ele6lio«  at  that 
time« 

U 


j'j^,  T  H  B     L  A  W 

Ik  tbc  cafe  of  the  Kling  an3  Monday  (a)j  it  appeared, 
that  on  the  3d  of  May,  1775,  there  were  only  a  mayor 
and  five  aldermen,  the  feven  remaining  offices  being  vacant 
by  death;. that,  on  that  day,  the  mayor  and  four  of  the 
five  fubfifting  aldermen,  aflembled  for  the  purpofe  of 
clcflking  feven  burgeffes  to  fill  up  the  vacancies,  the  fifth 
being  abfent,  and  refiding  without  the  reach  of  fummons : 
that  previous  to  any  election  being  had,  three  of  the  alder- 
men protefted  agalnft  the  meeting.  Thiat  the  mayor 
called  on  thefe  three  to  nominate  proper  perfons  to  fill  up 
the  vacancies,  which  they  then  omitted  to  do ;  on  which 
Ae  mayor  and  the  other  alderman  delivered  in  a  lift  of 
feven  perfons,  of  whom  the  defendant  Monday,  who  was 
duly  qualified,  was  one;  that  the  mayor  and  this  alder- 
man,  fo  met,  elected  thefe  feven :  but  that  the  other  three 
protefted  and  voted  agalnft  them.  That  Monday  was 
placed  firft  on  the  lift,  as  being  the  propereft  perfori  to  be 
(enidr  alderman.  That  the  three  protefting  aldermen  then  de- 
livered  in  a  lift  of  feven  other  burgefles ;  on  which  the  mayor 
and  the  other  alderman  made  an  objeflioh  to  three  of  thete 
feven  for  riot  having  takeri  the  facrament ;  and  to  three  others 
for  non-refidencc ;  both  which  grounds  of  objeftion  were 
known  to  the  three  protefting  aldermen  at  the  tinie  of  the 
eledion.  That  in  other  refpcflts  the  above  fix  perfons 
were  all  duly  qualified,  and  that  Godwin,  who  was  the 
ieventh,  was  qualified  in  every  fefpe£l  whatever. 

In  fiipport  of  the  eleiSlion  of  Monday,  it  was  argued 
that  two  reqiiiCtes  were  neceflary  to  make  a  good  ele£lion  s 
a  capacity  in  the  eIe£tors,  and  a  capacity  in  the  elected; 
and  that  unlefs  both  Concurred^  the  election  was  a  nullity* 
With  refpe<3:  to  the  capacity  of  the  eleSoirs,  their  right 
was*  this :  they  could  riot  &y  there  flioiild  be  ho  eTe<ttion ; 

(tf)  Cowp,  530,  vid,  vol.  I,  409. 

but 


O-F     CORPORATIONS.  T5 

but  they  were  to  eleft ;  that  therefore,  though  they  might 
vote  and  prefer  one  perfon  to  fill  an  office,  they  could  not 
fay  that  fuch  an  one  ihould  not  be  preferred ;  or  by  merely 
faying,  "wediffent  to  every  one  propofed,"  prevent  any 
ele(2ion  at  all.  That  their  right  confifted  in  an  affirmative^ 
not  a  negative  declaration :  confeq.uently  there  were  no 
efffeflual  means  of  voting  againjl  one  man  but  by  voting^flr 
another :  and  that  even  then,  if  fuch  other  perfon  were  un- 
qualified, and  the  eledor  had  notice  of  his  incapacity,  his 
vote  would  be  thrown  away. — In  fupport  of  this  rea- 
foning  were  cited  the  feVeral  cafes  above  mentioned  (a\ 
and  then  it  was  urged,  that  here  it  was  exprefsly  found, 
that  the  three  knew  of  the  incapacity  of  the  Jix  perfons  to 
whom  the  obje<^ion  was  now  made,  and  that  therefore 
their  votes  as  to  them  were  entirely  thrown  away :  and 
that  confequently  the  right  of  eleftion  being  in  the  ma- 
jority of  the  mayor  and  aldermen  for  the  time  being,  and 
fuch  m^ority  having  met^  the  aflembly  was  duly  Confti- 
tuted,  and  thb  eleftion  of  the  defendant,  though  by  a  mi- 
nority, was  clearly  a  good  eleftion, 

L6RD  Mansfield,  in  delivering  the  opinion  of  the  court, 
ex'ptefled  himfelf  to  this  efteft.  *' There  are  different 
kinds  of  eleftions  j  eleftiohs  of  members  of  parliament,  ver- 
db^6rs,  corporators,  &c.  and  different  queftions  may  arife 
out  of  each.  ^Therefore  they  muft  not  be  confounded  toge- 
ther, and  ithe  prefent  cafe  muft  ftand  upon  its  own  circum- 
ftanir^s.  On  the  eleftion  of  a  member  of  parliament  or  a 
vetderor,  whtre  the  eleftors  mufl  proceed  to  in  feleftiofi, 
becaufe  they  cannot  ftop  for  that  day ,^  or  defer  it  to  another 
time,  there  muft  be  a  candidate  or  candidates :  and  in  thi^teafe, 

{a)  Reguia  v.  Bofcawen.  Rex  v.  Withers.  Taylor  v.  mayor  oif 
Bith  i  and  dldktoow  v.  Wainwrlght.    • 

there 


1 6  THELAW 

there  is  no  way  of  defeating  the  eleftion  of  one  candidate 
propofed  but  by  voting  for  another.    But  in  the  busi- 

NESS  OF  CORPORATIONS  IT  IS  A  DIFFERENT  THING. 

"This  is  a  motion  in  the  fhape  and  un^ler  the  name  of 
a  propofal  made  to  the  body  by  the  mayor,  who  is  the  pre- 
fiding  ofEcer,  with  the  concurrence  of  one  of  the  alder* 
men.     But  the  eflential  part  is,  that  it  is  made  by  die 
may  or  y  and  he  propofesy^z;^«  perfons  together  ^in  one  lift, 
to  fill  up  feven  vacancies.     The  qucftion  put,  upon  thefc 
perfons  fo  propofed,  is  not,  which  of  them  (hall  be  eledted 
aldermen,  but  whether  the  feven  (hall  ht  aldermen  ?    The 
•  only  anfwer  to  be  given  toTuch  a  qucftion  is  yes  or  no. 
Suppofe  he  had  put  it  upon  an  individual.     I propofe  J.  S* 
Is  it  your  pleafun  that  y.  S.  Jhall  he  cbofen  alderman  ?  The 
anfwer  muft  have  been  yes  or  no.    It  is  not  a  queftion 
which  of  two  candidates  fhall  be  preferred :    but  whether 
lAitk  feven  perfons  fo  propofed  fhall  be  chofen.    Upon 
that  motion  there  is  a  majority  againji  them,  both  infub-' 
Jlance  miiform.     That  makes  an  end  of  the  whele<^  and  ren^ 
ders  it  unnecejfary  to  go  into  the  rejl  of  the  cafe.     But  I  will 
juft  obferve  upon  it.     What  fort  of  an  election  is  this, 
where  the  mayor  propofes  yiv^w  perfons  at  once  ?    The 
eleSors  might  be  inclined  to  vote  for  one,  two,  or  three 
of  them,  and  againft  the  others  ;  therefore  they  ought  to 
have  been  put  up  in  a  regular  way,  and  polled  for  one  by 
one^  and  yes  or  no  faid  to  the  propofal  of  each  refpe£tively. 
Such  a  complicated  cafe  never  exifted  before.    And  what 
have  the  majority  in  faft  done  ?  They  have  voted  for  one 
who  is  clearly  well  qualified  and  duly  chofen.     So  indeed 
are  three  more,  to  whom,  in  fa£b,  there  was  no  folid  ob- 
jedlion ;  for  non-refidence  is  no  obje£tion  under  this  char* 
tcr.-— Upori  the  whole,  my  opinion  is,  that  the  election  of 

^e 


OF    CORPORA  T  IONS.  17 

the  defendant  cannot  be  fupported ;   for  there  are  clearly 
four  of  the  other  lift  duly  eleSed.    His  poffeffion,  therefore, 
\%  both  againft  their  right^  and. agairift  the  opinion  gf  the 
majority."     ' 

This  judgment  is  open  to  fome  remark.    It  was  not 
contended  on  the  part  of  the  defendant,  that  he  alone  was 
duly  eledted,  or  that  he  had  a  right  to  the  office  in  preference 
to  every  one  of  thofe  in  the  oppofite  lift  j  the  whole  courfe 
of  the  argument  was  founded  on  the  admifSon  of  the  right 
of  the  protelting  aldermen  to  carry  the  whole  eledlion,  and 
to  exclude  the  defendant,  if  they  exercifed  it  on  proper  ob- 
je<5ls.    It  admitted  the  ele6tion  of  Goodwin  to  be  good, 
and  that  he  had  a  previous  right  to  Monday.     It  admitted^ 
likewife,-  that  if  the  other^^r  had  been  duly  qualified  to  be 
eledted,  Monday's  eledlion  was  void.    It  admitted  further^ 
that  if  the  obje(9ion  to  any  of  thefe  fix,  for  the  want  of 
qualification,  was  ill  founded,  they  were  to  be  preferred  to 
the  defendant:  but  it  contended  that  the  ele<Slion  of  the 
latter  was  good,  if  the  objeftion  to  any  of  the  fix  was  well 
founded :  that  objedion  was  well  founded  as  to  three :  the 
defendant,  therefore,  according  to  the  real  fcope  of  the 
argument,  was  duly  ele^led  to  the/ifth  place*    This  was 
not  againft  the  right  of  the  other  four^  however  it  might 
be  againft  the  opinion  of  the  majority  of  the  eledlors. 
And  as  the  votes  of  that  majority  were  thrown  away  on 
three  unqualified  candidates,   the  defendant,  according  to 
the  principle  which  had  obtained  in  aU  the  former  cafes  on 
the  fubjeft.  Was  duly  eleiSled,  though  by  the  minority.      ' 
In  the  cafe  of  Oldknow  and  Wainwright,  Lord  Mans- 
field  almo/l  admits  the  prmciple,  "  that  there  is  no  way  of 
defeating  the  ele<aion  of  one  candidate  but  by  voting  for 
another  J ''  for  he  fays,  "  the  protefters  could  not  ftop  the 
'    VoL.il.  C  eledion 


l8  THE     LAW 

cleSion  of  Scagravc,  when  once  entered  upon,  in  any  other 
way  than  by  voting  for  fomc  other  perfon,  or  at  leaft 
againft  him.**  He  here  fuppofes  fome  middle  cafe  between 
that  of  voting  for  the  perfon  propofed,  and  that  of  voting 
for  fome  other  perfon ;  but  what  is  the  nature  of  that 
middle  cafe  it  feems  difficult  to  conceive ;  for  after  having 
qualified  the  general  propofition  by  the  words,  "  or  at  leaft 
againft  him,"  he  immediately  adds,  "  whereas  here  they 
had  only  protefted  againft  any  eledHon  at  that  time."  Now 
I  cannot  conceive  in  what  manner  a  man  caH  voter  againft 
a  candidate  but  by  voting  for  another,  or  by  prot^ing 
againft  any  cleftion  at  all.  Till  the  cafe  of  the  King  and 
Monday,  therefore,  it  feems  to  have  been  acknowledged  as 
a  ^^«^rtf/ principle,  "that  there  was  no  way  of  defeating 
the  eleftion  of  one  candidate,  but  by  voting  for  another 
fuppofed  to  be  duly  qualified."— And  as  to  all  eleSibns  but 
thofe  of  corporations,  it  is  in  that  very  cafe  admitted  to 
its  full  extent.  "  But  in  the  bufinefs  of  corporations," 
fays  Lord  Mansfield,  "  it  is  a  different  thing  j"  and,  after 
ftating  the  circumftances  of  the  cafe,  he  fays,  "  it  is  not  a 
queftion  ivhich  of  two  candidates  iball  be  preferred :  but 
whether  thefe  feven  peribns,  fo  propofed,  ihall  be  cholen. 
Upon  that  motion  there  is  a  majority  againft  them  both  in 
fuhftance  znAform.  That  makes  ah  end  of  the  whole,  and 
renders  it  unnec^Jfary  to  ga^into  the  reft  of  the  caje.*'  He 
means  evidently  to  make  a  diflindion  between  elections  in 
corporations  and  other  ele6lidns,  and  to  fay,  that  in  the 
former  there  /xa  way  of  defeating  the  election  of  one  can- 
didate, without  voting  for  another,  which  muft  be  by  pro- 
tefting  againfti»9y  ele£^ion ;  and,  in  fa£^  the  circumftance 
«n  which Jiis  lordihip  founds  his  judgment,  amounts  to  no 
more  than  a  proteftation  againft  any  eledion^  for  although 

the 


OF    OdRPORATIONS.  I9 

t)|e  proteftors  did  vote  for  others,  his  lordfhip  throws  that 
circumftance  out  of  the  cafe,  and  lays,  "  that  on  the 
motion  whether  the  feven  perfons  propofed  flxall  be  chofen, 
there  is  a  majgrity  againft  them  both  in  fubftance  and  form  \ 
and  that  it  is  unnecejfary  to  go  into  the  nji  of  the  cafe,  be- 
caufe  this  circumftance  alonp  puts  an  end  to  the  whole 
queftion.** 

This  diftin£tion  between  elections  in  corporations,  and. 
other  eleAiohs,  feems  to  have  been  taken,  for  ihcfrfi  time, 
in  this  cafe  of  the  King  and  Monday ;  and  it  may  be  re- 
marked, that  the  principle  on  which  it  is  founded  is  inap- 
plicable to. many  cafes  of  ele£tions  in  corporations.  *'  On 
the  ele<ftion  of  a  member  of  parliament  or  a  verderor,**  fay? 
his  lordfhip,  "  where  the  eleftors  mti/I  proceed  to  an  elec- 
tion^ becaufe  they^  cannot  ftop  for  that  day,  or  defer  it  to 
another  time,  there  mu/i  be  a  candidate  or  candidates ;  and 
in  that  cafe,  there  is  no  way  of  defeating  the  election  of  one 
candidate  propofed  but  by  voting  for  another.    But  in 

THE  BUSINESS   OF  CORPORATIONS  IT  IS  A  DIFFERENT 


THING.** 


I  APPREHEND,  that  in  the  bufinefs  of  corporations,  as 
well  as  in  every  other  cafe,  there  can  be  no  ele£lion  at  all, 
unlefs  there  be  a  candidate  or  candidates ;  and  in  the  cafe 
of  the  eledlion  of  a  mayor,  or  other  head  officer,  on  the 
charter-day,  or  in  the  cafe  of  an  election  of  an  alderman  by 
the  wardmote,  as  in  the  city  of  London,  or  where  the  elec- 
tors are  commanded  by  mandamus  to  ele£t  any  oiEcer  what- 
ever of  a  corporation,  '^  the  eledtors  .mu/l  proceed  to  an 
ele£tion,  becaufe  they  cannot  ftop  for  that  day,  or  defer  it 
to  another  time."— The  only  cafe  to  which  this  diftinftion 
can  apply,  appears  to  me  to  be  that  of  a  mere  voluntary 
chQioa  on  a  bye  day,  to  fill  up  a  vacancy  which  might, 
at  the  difcretion  of  the  ele^ors,  be  filled  up  at  any  time. 

C  a  It 


20  THE    LAW 

,  It  has  been  remarked  (17),  "that  in  corporations  hj 
prefer!  ption,  the  time  and  manner  of  eledlion,  and  the 
qualifications,  both  of  the.  electors  and  of  the  perfons  ca- 
pable df  being  eIe<Sted,  depend  principally  on  cuftom ;  and 
in  corporations  by  charter,  on  the  provHions  of  the  char- 
ter."  This  qualification  of  the  propofltion  was  introduced 
with  a  view  to  the  inherent  power  which  corporations  have 
with  refpe£l  to  the  regulation  of  their  internal  concerns ;  for, 
though  it  be  true  that  all  thefe  circumftances  depend  princi" 
pally  on  cuftom  or  charter;  yet,  fo  far  as  may  be  confiftent 
with  the  conftitution  of  the  corporation,  whether  by  char- 
ter or  prefcription,  thefe  may  all  be  regulated  by  bye  laws. 

The  cafe  of  Machell  and  Nevinfon,  mentioned  in  the 
preceding  volume  (b)y  is  an  inftance  of  the  power  of  a  cor- 
poration to  regulate  the  time  of  election,  where  that  time  is 
not  abfolutely  fixed  to  a  particular  day,  by  charter  or  cuftom : 
there  it  appeared,  that  previous  to  the  year  1674,  the  mem- 
bers ufed  to  be  fummoned  to  meet  to  choofe  a  mayor,  by  order 
of  the  old  mayor,  (bme  time  about  Michaelmas,  but  not  on 
a  fixed  day :  on  May  26th,  1674,  an  oider  was  made  by  the 
mayor,  aldermen,  and  common  councilmen,  that  they 
fhould  for  the  future  meet'  on  the  Monday  before  Michael- 
mas day  everjr  year  to  choofe  a  mayor,  under  a  penalty  to 
be  infliiSed  on  every  one  who  (hould  wilfully  abfent  him- 
felf.—To  which  regulation  no  objection  was  made. 

Of  the  power  of  a  corporation  to  regulate  the  manner 
of  election,  when  no  particular  mode  is  eftablifhedby  char- 
ter or  prefcription,  it  will  be  fufficient  to  ftate,  as  an 
example,  a  cafe  which  lately  occurred  in  the  town  of 
Cambridge  on  the  election  of  a  mayor  (r). — This  came 
before    the    court  on  a  fpecial  verdiii,   found    on    two 

{a)  Ante,  page  2.  {b)  Vol.  i,  434.    2  Ld.  Raym.  1355. 

(f)  Newling  V.  Francis,  j  Term  Rep.  189, 

iflUes, 


OP    CORPORATIONS.  21 

ilTues,  which  had  heen  dire£led  to  try  the  right  of  the 
plaintiff  or  the  defendant  to  the  ofHce* — The  firft  count 
ftated  the  plaintiiF's  mode  of  eledlion,  which  was  this : 
the  names  of  all  the  common  council  of  the  borough,  pre- 
fent  at  the  ele(5iion,  were  to  be  firft  written  on  feveral 
pieces  of  paper  and  lai4  upon  the  table;  the  mayor  and  ^s 
affiftants  were  to  ele£t  two  aldermen  to  mclofe  the  names 
in  balls  of  waXy  and  put  the  latter  into  a  box;  the  mayor 
and  his  afSftants  were  alfo  to  appoint  one  other  alderman 
to  take  out  one  of  the  balls  for  the  bench ;  and  the  com- 
monalty weise  to  take  out  one  other  ball;  thofe  whofe 
names  were  inclojfed  in  the  balls  fo  taken  out,  were  to 
choofe  twelve  burgefTes,  three  for  each  ward  within  the 
borough ;  thefe  twelve  being  firft  fworn,  were  to  choofe  fix 
,  other  burgefTes,  two  out  of  two  of  the  wards,  and  two  out 
of  each  of  the  others ;  and  thofe  eighteen  burgefles  (o 
chofen  and  fworn,  were,  within  an  hour,  to  choofe  a 
mayor,  bailiff,  and  counfellors  of  the  borough. 

The  fecond  count  ftated  the  defendant's  mode  of  elec- 
tion ;  which  was,  that  the  mayor  and  his  alfeflbrs  or  coun- 
fellors {howld  eleft  one  of  the  commonalty,  and  that  another 
of  the  commonalty  fliould  be  elefted  by  the  commonalty  j 
which  two  being  fworn,  fliould  eleft  twelve  men  of  the 
commonalty,  which  twelve  fliould  choofe  fix  more  of  the 
commonalty  s  and  that  thofe  eighteen,  in  the  prefence  of 
the  c6mmonalty,  fliould  fwear,  that  they  would  choofe  a 
certain  fit  mayor  to  govern  the  town,  four  bailiffs,  and  four 
counfellors  4  and  that  the  two  who  chofe  the  twelve,  (hould 
not  be  part  of  the  eighteen  In  the  cleflion. 

The  fpecial  verdift  found  in  fubftance ;  that  Cambridge 
was  a  borough  by  prefcription,  by  the  name  of  Mayor, 
Bailiffs,  and  Burgefles ;  that  there  bad  not  been  any  one 
uniform  and  cprtain  mode  of  ele(Elionto  thefe  offices  ufed 

C  J  ind 


22  THE     LAW 

and  eftabli(hed  in  the  borough  from  time  immemorial ;  but 
that  it  had  from  time  to  time  been  ordered  and  direfted  by 
bye  laws  for  that  purpofe  made  by  the  body  at  large.    It 
then  ftated  a  bye  law  made  in  the  1 8  Ed.  5,  for  the  deftion 
of  mayor,  bailiffs,  and  counfeUors,  as  fet  out  in  the  fecond 
count  of  the  declaration  ;•  which  was  followed  till  the  loth 
of  Elizabeth,  when  the  bye  law,  prefcribing  the  mode  of 
eledUon,  fiated  in  the  firft  count,  was  made ,  and  that  this 
latter  mode  was  ufed  from  that  time  till  the  granting  of  a 
charter  in  the  36  Car.  2,  which  directed,  that  the  mayor  and 
other  officers  (hould  be  elefled  in  the  fame  manner  as  had 
been  accuftomed  for  twenty  years  pad:.    The  verdi£l  ftated 
further,  that  this  charter  was  granted,  in  cdnfequence  of 
a  furrender,  by  deed,  of  all  the  franchifes  of  the  corporation 
concerning  the  election  of  mayor  and  other  officers ;  but 
that  the  deed  had  never  been  enrolled  of  record:  that  the 
(node  of  ele<9;ion,  which  had  been  ufed  for  twenty  years 
.  brfoYe  the  granting  of  this  charter,  was  ufed  till  the  4th 
of  James  2,  who  then  iflued  a  proclamation  reftoring  all 
thofe  corporations  to  their  former  Atuation,  who  had  fur- 
rendered  their  charters,  but  of  which  the  deeds  of  furrender 
had  not  been  enrolled  of  record :   that  the  corporation  of 
Cambridge  had  a£led  in  conformity  to  the  proclamation  i 
and  that  in  the  year  1786,  a  bye  law  had  been  made  efta* 
blilhing  the  mode  of  ele£tion  of  the  defendant  fet  out  in  the 
fecond  count. 

It  was  contended  that,  notwithftanding  the  proclama- 
tion, the  charter  of  Charles  the  fecond  was  ftill  in  force, 
and  that  cohfequently  the  bye  law  of  1786  was  void;  for, 
that  a  corporation  could  not  change  its  conftitudon,  as  to 
the  election  of  officers,  where  it  was  regulated  by  charter 
or  a  prefcriptive  ufage ;   though,  if  the  charter  or  ufage 

were 

S 


OP     CORPORATIONS.  23 

vftre  fiient,  as  it  was  incident  to  a  corporation  to  perpe- 
tuate themfelves,  they  might  make  bye  laws  to  regulate 
the  election  of  their  officers.  Here  the  charter  of  Charles 
the  fecond  had  direded  the  mode  of  eledlion  to  be  as  it  had 
been  for  twenty  years  before;  and  the  power  of  making 
bye  laws  was  only  given  in  a  general  claufe  among  other 
things :  but  it  could  not  be  fuppofed  to  have  been  the 
King's  intention  to  give  the  corporation  a  power  of  un« 
doing,  by  a  by-law,  that  which  was  the  chief  objedl  of  the 
charter. 

The  court  were  of  opinion,  that  the  proclamation,  and 
the  corporation's  having  a<Sled  under  it,  put  the  charter  of 
Charles  the  fecond  out  of  the  cafe,  and  that  the  bye  law  of 
.1786  was  good;  for  though  it  was  admitted  that  bye  laws 
could  not  alter  the  conftitution,  they  might  r^ulate  the 
manner  of  eleffcion,  if  they  did  not  infringe  the  charter: 
here  it  was  exprefsly  found  that  the  mode  of  election  was 
not  regulated  by  any  charter  or  prefcription,  but  that  it 
had  varied  from  time  to  time.    The  fame  power,  therefore, 
which  enabled  the  corporation  to  nuke  the  former  bye  law, 
alfo  enabled  them  to  fubftitute  another  in  its  room. 

It  was  added  (a),  that  it  might  be  a  coniiderable  queCr 
tion,  whether  this  bye  law  of  1786  would  not  have  been 
good,  even  if  the  charter  of  Charles  the  fecond  had  ftood  ; 
in  the  mode  of  ele£lion  eftabliihed  by  the  bye  law,  to  which 
the  charter  of  Charles  the  fecond  referred,  much  was  left 
to  chance,  which  the  bye  law  of  1786  removed;  and  as 
that  did  not  alter  the  conftitutioi),  but  only  the  mode  of 
election,  it  probably  would  not  be  bad,  even  if  the  charter 
of  Charles  the  fecond  had  ftill  continued  in  force. 

(«)  By  BuUer  J. 

C  4  With 


24  TH«     LAW 

With  refpeQ,  to  the  qualifications  of  die  ele^rs  and  of 
the  eligible,  it  has  been  laid  down  (a)  as  a  general  propo- 
fition,  that  a  bye  law  may  limit  the  number  of  the  former  ; 
but  not  the  number  of  the  latter :  becaufe  a  limitation  of 
the  number  of  elediiors  tends  to  prevent  the  confufion  na-» 
turally  attendant  on  popular  ele£Uons ;  a  reafon  which  doe& 
not  in  fo  great  a  degree  apply  to  the  cafe  of  the  eligible : 
but  neither  branch  of  this  propofition  is  to  be  taken  in  the 
full  extent  of  the  words  in  which  it  is  exprefledj  for 
neither  is  every  bye  law  good  which  limits  the  number  of 
eledors,  nor  every  bye  law  bad  which  limits  that  of  the 
eligible. 

With  refpefl  to  the  latter,  though  a  bye  la^  would  be 
void,  which  fhould  require  an  additional  qualification  be« 
yond  thofe  required  by  the  conftitution  of  the  corporation, 
or  which  fhould  transfer  the  right  of  being  ele£^ed  from  a 
more  numerous  body,  to  a  body  of  a  more  fele£l  defcrip- 
tion  't  yet  a  bye  kw,  requiring  the  nomination  of  a  parti- 
cular number  of  candidates,  out  of  the  whole  number  of  the 
perfons  eligible,  aitd  that  the  election  fhould  be  of  one  of 
the  candidates  fo  nominated,  woidd  be  good. 

Thus  where  it  appeared,  that  £dward  the  third  granted 
by  charter  to  the  burgefles  of  Dartmouth,  the  privilege  of 
elefting  from  among  themfelves  a  mayor  every  year ;  that 
by  particular  conflitutions  made  in  the  reigns  of  Queen 
Elizabeth  and  King  James,  and  long  u(age  in  conformity 
to  thofe  cpnflitutions,  the  common  council  bad  propofed 
two  perfons  to  the  freemen,  of  whom  the  latter  chofe  one ; 
but  that,  in  ]68i,  a  bye  law  had  been  made  repealing  all 

(a)  In^he  cafe  of  Philips,  mayor  of  Carmarthen,  Trin.  1749,  as, 
^3  G.  2,  B.  R.  cited  3  Bur.  1833, 1836, 1838,  L«c  v.  Wajlis  ct  al', 
»7  Jan.  1756,  cited  3  Bur.  1S33, 

fori^er 


OF    COI^  PORATIONS.  2^ 

former  bye  laws,  and  ena£tiiig,  that  for  die  future^^eledions 
Ihould  be  made  without  the  previous  nomination  of  par- 
ticular candidates :  the  court  held,  that,  though  by  the  grant 
of  Edward  the  third,  theele£tion  was  to  be  from  the  freemen 
at  large,  yet  it  might  be  reftrained  by  bye  laws  and  uiage, 
to  the  choice  of  one  out  of  two  propofed  by  a  fele£t  body  ; 
but  that  the  bye  law  of  1681  had  well  reftored  the  confti- 
tution  to  its  primitive  ftate  (a). 

So,  where  it  appeared  by  a  fpecial  verdidl,  that  by  char- 
ter, the  mayor  of  the  borough  of  Macclesfield  was  to  be 
chofen  iy  the  capital  burgefles  out  of  thes  capital  burgefles, 
who  confifted  of  twenty-four  ^  that  for  fifty  years  paft,  by 
an  ufage  founded  on  a  bye  law  which  was  not,  at  the  time 
of  the  verdiA,  extant  in  writing,  thexomman  burgefles  had 
putfi^ue  of  the  capital  burgefies  in  nomination,  out  of  which 
five  the  capital  burgefies  had  chofen  one  to  be  mayor ;  that 
there  were  no  traces  before  thefe  fifty  years  of  any  eledidn 
in  any  other  manner :  and  that,  in  the  prcfent  cafe,  the 
common  burgefies  had  met  on  the  charter  day,  -  and  put  in 
nomination  eight  capital  burgefles,  of  ^om  the  plaintiff 
was  one,  and  had  the  majority  of  capital  burgefles  in  his' 
favour :  the  court  held  the  ufage  to  be  good,  as  it  had  a 
tendency  to  prevent  popular  confufion;  but  tiiat  the  elec- 
tion of  the  plaintiff  was  void,  becaufe  it  purfued  neither  the 
charter  nor  the  bye  law :  it  did  not  purfue  the  charter,  for 
that  dire(5led  the  eledion  to  .be  out  of  the  capital  burgefles 
at  large,  and  here  the  number  was  confined  to  eights  and 
it.  did  not  purfue  the  u&ge,  becaufe  more  than  five  were 
nominated,  which  might  produce  that  confufion  againft 
which  it  probably  was  the  intention  of  the  bye  law  to 
provide  (b). 

(a)  Salk*  190,  i9i«  (h)  Barber  v.  Boiilton.    i  Str.  314. 

But, 


26  THB    LAW 

'BuT|  in  the  cafe  of  Tucker,  mayor  of  Weymouth,  where 
it  appeared  that  the  charter  directed  the  election  to  be  made^ 
out  of  four  perfons  to  be  nominated  out  of  the  burgeifes  or 
inhabitants  at  large,  and  that  a  bye  law  made  by  the  mayor 
and  aldermen  dire£led  it  to  be  made  out  of  four  perfons  to 
be  nominated  out  of  the  aldermen,  of  of  whom  one  at  leafl 
(bould  be  an  alderman;  the  court  of  King's  Bench  held 
this  bye  law  to  be  void,  and  on  a  writ  6i  error  the  houfe 
of  lords  affirmed  the  judgment  {a). 

With  rtfyeSt  to  the  electors,  though  a  bye  law  re* 
ftraining  their  number  may  be  good,  yet  that  reftraint  muft 
be  within  certain  limitations :  It  cannot  ftrike  off  an  in- 
tegral  part  of  the  etedors ;  nor  transfer  the  right  of  elec- 
tion from  the  body  at  large  to  a  fiUSi  number  independent 
of  that  body  ;  nor  impofe  a  qualification  inconftftent  with 
the  charter,  or  unoonne£l;ed  with  their  corporate  cha- 
ra(9«r. 

The  firft  remarkable  cafe  on  this  fubjeA,  is  "  the  cafe 
of  corporations"  in  the  40  and  41  £1.  (b)  of  which  the  fub- 
fiance  was  this— -^Several  cities  and  towns  had  been  in- 
corporated by  charters  which  direSed  the  ele£lion  of 
mayor,  bailiiFs,  aldermen,  and  other  principal  officers,  to  be 
by  the  commonalty  or  burgefies  indefinitely :  by  long  con- 
tinued ufage,  thefe  elections  had  been  made  by  a  (doH 
number  of  the  principal  perfons  of  the  commonalty  or  bur- 
gefles,  under  the  name  of  common  council,  or  fome  fimilar 
denomination,  and  not  by  the  commonalty  or  burgefles  at 
large,  or  fo  many  of  them  as  chofe  to  be  prefent  at  the 
elections :  feveral  attempts  had  been  lately  made,  in  fome 
corporations,  in  oppofition  to  this  ancient  ufage,  to  intro- 

{a)  Rex.  V,  Tucker,  mayor  bf  Weymouth,  Pafch.  14  <^*  *>  cited 
3  Bur.  1855. 
.  (*)  4  Co.  78,    Jenk.  »73.  .^^ 


OP    CORPORATIONS. 


/^•v 


duce  popular  ele£lions ;  on  which  the  lords  of  die  cpuncjl 
thought  it  of  importance   to  fubmit  this  queftion  to  the 
judges,  ^^  whether  the  ele«5lions  made  according  to  the 
ancient  ufage  were  good  in  law,  notwithflanding  the  terms 
of  the  charters,  which  gave  that  privilege  indefinitely  to  all 
the  commonalty  r"    and  it  was  refolved  by  the  juftices, 
iays  Lord  Coke,   ^^  upon  great  deliberation  and  confer- 
ence had  among  themfelves,  that  fuch  ancient  and  ufual 
eledtions  were  good  and  well  warranted  by  their  charters^ 
and^  alfo  by  the  lawi   for  in  every  of  their  charters  they 
have  power  given  them  to  make  laws,  ordinances  and  con- 
ftitutions,  for  the  better  government  and  order  of  their 
cities  or  boroughs,  &c.  by  force  of  which,  and  for  avoiding 
of  popular  confufion,  they,  by  their  comtnon  ajfent^  conftitute 
and  ordain,  that  the  mayor  or  bailiffs,  or  other  principal 
officers,  {hall  be  eleded  by  a  (eledled  number  of  the  prin- 
cipal of  the  commonalty,  or  of  the  burgefles,  andprefcribe 
alfo  how  fuch  feleiied  number  fiall  be  chofen\    and  therefore 
fuch  ordinance  and  conftitution  was  refolved  to  be  good, 
and  agreeable  to  the  law  and  their  charters,  for  avoiding  of 
popular  diforder  and  confufion :    and  although  now  fuch 
conftitution  or  ordinance  cannot  be  iliewn,  yet  it  fliall  be 
prefumed  in  refpedt  of  fuch  fpecial  manner  of  ancient  and 
continual  election   (which  fpecial  eU^ion  could  mt  begin 
without  common  confent),  that  at  iirft  fuch  ordinance  or  con- 
ftitution was  9iade." 

Two  obfervatioos  occur  on  this  cafe.  Firft,  That  the 
bye  law  confining  the  election  to  a  feledl  number  of  elec- 
tors, was  prefumed  to  have  been  made  by  the  common  affent 
of  the  whole  corporation,  by  virtue  of  the  inherent  power 
of  corporations  to  make  bye  laws,  and  not  by  ^  kleAhody 
exprefsly  empowered  to  make  bye  laws  by  the  provifions 
of  the  chai^er:    Secpndly^  That  the  fele£t  number,  to 

whom 


28  THE    LAW 

whom  the  power  of  elcaion  was  fuppofed  to  be  delegated, 
were  prefumed  to  be  the  reprefentatives  of  the  whole  body 
chofen  in  the  manner  prefcribed  by  the  bye  law  itfel^i  for 
iiitfpecific  purpofe  of  the  eleSion ;  and  not  a  dtftinSf  body 
appointed  by  the  charter,  and  independent  of  the  common- 
alty at  large. 

The  cafe  in  which  the  general  propofition  was  eftabllflied, 
•*  that  the  number  of  eleSiors  may  be  retrained  by  a  bye 
law;  but  that  a  bye  law  cannot  narrow  the  number  of 
the  perfons  out  of  whom  the  eledion  is  to  bp  made/'  is  that 
of  Philips,  mayor  of  Cannarthen,  which  occurred  in  1749, 
and  was  followed  by  that  of  Lee  and  Wallis  in  1756  [a) ; 
\\xt  of  neither  of  thefe  cafes  are  we  acquainted  with  the 
particular  circumftances,  as  they  do  not  appear  to  be  any 
where  particularly  reported  :  of  the  latter,  we  only  know 
that  it  confirmed  the  propofition  which  had  been  eftablifhed 
in  the  former ;  with  refpefl  to  which  all  that  we  can  coUeifl 
from  the  different  places  in  which  it  is  cited  {b)y  is  that, 
chough  It  was  aflerted  on  the  one  hand  ^^  that  the  common 
council  were  chofen  out  of  ^e  burgefles,  and  not  out  of  the 
comnjonalty  at  large,  and  had  never  been  part  of  the  com- 
monalty,'* it  was  affirmed  on  the  other,   "  that  there  was 
no  common  council  diftinSf  from  the  commonalty,  and 
as  a  fele6l  body ;"  that  the  bye  law  on  which  the  queflion 
aroie  was  made  by  the  whole  body ;  and  that  on  one  fide  it 
was  faid  to  have  been  held,  ^'  that  a  bye  law  could  not  ex- 
clude an  integral  part  of  the  eleftors,"  while  on  the  other 
hand,  it  was  alTerted,   **  that  that  queflion  was  not  deter- 
mined/*   But  what  were  the  terms  of  the  bye  law,  or  the 
circumfhinces  of  the  election  of  which  the  validity  was 
contefled,  we  are  not  told. 

m 

(it)  Vid.  ante,  p.  14'  (i)  3  Bar.  1833, 1S35, 1836, 1838,  JS39,  t<4o> 

The 


OF    CORPORATIONS*  2^ 

The  cafe  in  which  it  was  finally  decided  *^  that  a  bye 
law  cannot  exclude  an  integral  pzrt  of  the  eleftors,  nor  im- 
pofe  a  qualification  inconfiftent  with  the  charter,  or  iin- 
conne£led  with  their  corporate  charadler,"  was  that  of 
Spencer,  common  councilman  of  Maidftone,  of  which  the 
circumftances  were  thefc:  by  a  charter,  bearing  date  17th 
of  June,  21  G.  2,  the  corporation  of  Maidftone  was  to  con- 
fift  of  a  mayor,  thirteen  jurats,  including  the  mayor,  forty 
common  councilmen,  and  commonalty ;  the  eleftion  of  the 
mayor  was  to  be  by  the  jurats ;  of  the  jurats,  by  the  mayor, 
jurats  and  common  councilmen,  exclufive  of  the  common- 
alty;  and  of  the  common  councilmen,  by  the  mayor,  ju- 
rats, and  commonalty,  including  the  common  councilmen, 
out  of  the  principal  inhabitants  of  the  tpwn  and  parifh; 
and  power  was  granted  to  the  mayor,  jurats,  and  common 
council  to  make  bye  laws. 

Under  this  power  the  mayor,  jurats,  and  common 
council,  on  the  i8th  of  Auguft,  1764,  made  a  bye  law, 
**  That  on  every  future  eledion  of  common  councilmen, 
the  mayor,  jurats,  and  common  council  for  the  time  being, 
and  fuch  of  the  common  freemen  for  the  time  being,  who 
(hould  refide  in,  and  (hould  refpedlively  have  gone  through 
and  ferved,  for  the  fpace  of  one  whole  year  refpedlively,  the 
feveral  offices  of  churchwarden  and  overfeer  of  the  poor, 
refpedlively,  for  the  faid  town  and  parifh,  or  the  major  part 
of  fuch  mayor,  jurats,  common  councilmen,  and  common 
freemen  qualified  as  aforefaidy  Qiould  affemble  themfelves 
together  in  the  court  hall  of  the  faid  town  and  parifh ;  and 

beii^g  fo  affemblcd fliould  by  themfelves,  without  the 

prefence  or  concurrence, of  any  of  the  commonalty  of  the 
faid  town  and  parifh,  eleft  one  or  more  of  the  principal  in- 
habitants of  the  faid  town  and  parifh  to  be  a  common 
councilman  or  common  couiicilmea  of  the  faid  town  and 
parifh.'* 

Thi 


3^  T  H  B     L  A  W 

The  defendant  jufiified  his  a£lmg  as  a  common  coun- 
cilman on  an  ele<%on  under  this  bye  law,  and  had  a  verdidt 
iniiis  favour ;  and  the  queftion  of  the  validity  of  the  bye  law 
came  before  the  court  on  a  motion  in  arreft  of  judgment. 

The  court  were  of  opinion,  that  this  cafe  was  not  to  be 
compared  to  thofe,  in  which  there  was  a  common  council 
fuppofed  to  have  been  created  by  the  commonalty,  and 
therefore  poileffing  the  original  power  of  the  lattery  be- 
caufe  the  charter  having  exprefsly  conllituted  the  Common 
council,  they  were  to  be  confldered  as  a  diflin£l  body,  in- 
dependent of  the  commonalty,  who  therefore  formed  an 
integral  part  of  the  eleflors  appointed  by  the  charter ;  for 
which  reafon,  had  the  bye  law  confined  the  right  of  ele£tioA 
to  the  mayor,  jurats,  and  common  council,  it  would  have 
.  been  clearly  void :  it  had  not,  indeed,  done  that,  but  it  had 
excluded  fuch  of  the  commonalty  as  did  not  pofTefs  a  quali- 
fication which  had  no  connaftion  with  their  corporate 
charafter,  and  which  was  not  required  by  the  charter :  it 
confined  the  right  of  voting  to  fuch  as  had  ferved  for  one 
whole  year  the  offices  of  churchwarden  and  overfeer  of  the 
poor  refpcftively :  this  put  the  whole,  power  of  eleftion  in 
the  makers  of  the  bye  law  themfelves,  and  in  perfons  who 
had  no  connexion  with  the  corporation  j  for  the  parfon 
had  the  nomination  of  at  leafl  one  of  the  churchwardens, 
and  the  makers  of  the  law  themfelves  had  the  appointment 
of  the  overfeers,  becaufe  feme  of  the  jurats  were  borough 
' juftices  by  their  office,  and  bad  an  exclufive  jurifdic- 
tion  (^7)  •  Tn  thofe  cafes,  in  which  a  bye  law,  confining  the 
right  of  eled^ion  to  a  fele£t  number,  would  be  good,  an  ufage 
to  the  fame  efFeS,  of  however  long  continuance,  if  iinfup- 
ported  by  a  bye  law,  would  be  void  {b), 

{a)  Rex  V.  Spencer,  coinmon  councilman  of  Maidftone.     3  Bur. 
xS27-xS4o.  (,b)  Rex  v.  Tonilyn  ct  al*,  B,  R.  H.  316. 

Where, 


OF    CORPORATIONS.  31 

Where,  by  cuft6m  or  by  charter,  a  particular  day  was 
appointed  for  the  ele£tion  of  a  magiftrate,  by  common  law 
the  ele£iion  muft  have  been  on  that  precife  day ;  and  in 
the  cafe  of  a  cuftom^  if  the  plaintiff  in  a  declaration  for  a 
falfe  return  to  a  mandamus,  had  laid  the  day  of  his  election 
right,  but  at  the  trial  had  proved  it  to  have  been  on  a  dif- 
ferent day,  he  would  have  failed  in  his  action,  becaufe  he  did 
not  bring  his  eledtion  within  the  cuftom :  but  if  he  had  laid 
a  wrong  day  in  the  declaration,  and  proved  an  election  on 
the  right  izy^  he  would  have  maintained  his  afkion,  pro- 
vided the  day  laid  in  the  declaration  had  been  before  the 
adipn  brought,  becaufe  the  day  laid  was  not  material  to  the 
cuftom  (</). 

By  the  ftatute  of  1 1  G.  i,  c.  4,  after  reciting  "  that,  in 
many  cities,  boroughs,  and  towns  corporate,  the  eleftion  of 
the  mayor,  bailiff  or  bailiffs,  or  other  chief  officer  or  officers, 
was,  by  charter  or  ancient  ufage,  confined  to  a  particular 
day  or  time,  without  any  provifion  how  to  aft  or  proceed, 
in  cafe  no  election  were  then  made;  and  that  it  frequently 
happened,  that  by  charter  or  ufage,  particular  z&.s  were 
required  to  be  done  at  Certain  times,  in  order  to  complete 
fuch  eIe£bions,  and  that  by  the  contrivance  or  default  of  the 
perfon  or  perTons  who  ought  to  hold  the  court,  or  prefide 
in  the  aflembly  where  fuch  eledlions  were  to  be  made,  or 
fuch  adls  to  be  done,  or  by  accident,  it  had  fometimes 
happened,  and  might  frequently  do  fo,  that  no  courts  or 
ailemblies  had  been  held,  or  eleftions  made,  or  fuch  afts 
done  within  the  time  fixed  for  that  purpofe;  in  which 
cafes,  if  eleSions  of  fuch  officers  could  not  afterwards  be 
made  or  completed,  or  if  in  confequence  of  fuch  omiffion, 
the  corporation  ihould  be  diflblved,  great  mifchiefs  might 
enfue :"  it  was  ena<Sed,  "  that  if  in  any  city,  borough,  or 

{a)  Vid.  Cartk.  mJ. 

town 


32  THE    LAW 

town  corporate,  no  elc£Uon  (hould  be  made  of  the  mayor, 
bailiff  or  bailiffs,  or  other  chief  officer  or  officers  of  fuch 
city,  borough  or  town  corporate,  on  the  day  or  within  the 
time  appointed  by  charter  or  ufegc  for  fuch  ele^Stion,  or 
fuch  ele^kn  being  made^jhould  afterwards  become  voidj  whe- 
ther fuch  omiffion  or  avoidance  fhould  happen  through  the 
default  of  the  officer  or  officers  who  ought  to  hold  the 
court,  or  prefide  where  fuch  eledion  was  to  be  made,  or  by 
any  accident  or  other  means  whatever,  the  corporation 
fhould  not  thereby  be  deemed  or  taken  to  be  difTolved,  or 
difabled  from  eleding  fuch  officer  or  officers  for  the  future : 
but  that  in  any  cafe  where  no  election  (hould  be  made  as 
aforefaid,  it  iliould  and  might  be  lawful  for  the  members  or 
perfons  of  fuch  cityy* borough,  or  corporation,  who  had 
right  to  vote  or  be  prefent  at,  or  to  do  any  other  a6l  ne- 
ceilary  to  be  done,  in  order  to  or  for  the  completing  of 
fuch  .  election,  and  they  or  fuch  of  th^m  as  fhould  not  be 
hindered  by  any  reafonable  impediment  or  excufe,  were 
thereby  required,  refpeftively,  to  meet  or  aflemble  together 
in  the  town  hall,  or  other  ufual  place  of  meeting,  for  mak- 
ing fuch  election,  within  fuch  city,  borough,  or  town  cor- 
porate, on  the  day  next  after  the  expiration  of  the  time 
within  which  fuch  ele£iion  ought  to  have  been  made,  un* 
lefs  fuch  day  fhould  happen  to  be  Sunday,  and  then  upon 
the  Monday  following,  between  the  hours  of  ten  in  the 
morning  and  twx>  in  the  afternoon  of  the  fame  day }  and 
that  the  members  or  perfons  having  right  to  vote  at,  or  to 
do  any  other  aft  neceflary  to  be  doiie  in  order  to  fuch 
eledtion,  or  fuch  of  them  as  fhould  be  fo  affembled  or  met 
together,  (hould  forthwith  proceed  to  the  eleftion  of  a 
^nayor,  bailiff  or  bailiffs,  or  other  chief  officer  or  officers 
for  fuch  city,  borough,  or  corporation,  and  to  do  every  aft 
neceffary  to  be  done,  in  order  to  or  for  the  completing  of 

fuoh  eleftion,  in  fuch  manner  as  was  ufual  in,  or  in  order 

to 


OF    CORPORATIONS.  33 

to  the  elcftion  of  fuch  officer  or  officers,  on  the  day  or 
within  the  time  appointed  by  charter  or  ufage  for  ftich 
eleaion;  and  that  in  cafe  upon  fuch  day  of  meeting^ 
thereby  appointed  for  fuch  eleftion,  the  mayor,  bailiff  or 
bailiffs,  or  other  proper  officer  or  officers,  who  ought  to 
have  held  the  court,  or  prefided  at  the  affembly  for  fuch 
eledion,  or  doing  any  other  a£fc  neceflary  to  be  done  in 
order  to  fuch  eled^ion,  if  the  fame  had  been  made  or  done 
on  the  day  fixed,  or  within  the  time  limited  by  charter  or 
ufage  for  that  purpofe,  fhould  be  abfent,  then  fuch  other 
perfon  having  a  right  to  vote,  being  the  nearefl  then 
prefent  in  place  or  office  to  the  perfon  or  perfons  fb  ab- 
fenting  himfelf  or  themfelves,  fhould  hold  the  court  or  pre* 
fide  im  the  affembly,  and  (hould  have  the  fame  power  and 
authority  in  all  refpe<5ts  therein,  as  the  mayor,  bailiff  or 
bailiffs,  or  other  chief  officer  or  officers  of  the  fame  city, 
borough,  or  town  corporate,  at  any  court  or  aflembly  for  the 
ele£):ion  of  officers  for  fuch  place,  or  fordoing  any  other  aft 
neceflary  to  be  done  in  order  to  fuch  eleftion" f,  1. 

^^  Provided  always,  that  no  fuch  election,  nor  any  ad 
done  in  order  thereunto,  (hould  be  valid,  unlefs  as  great  a 
number  of  perfons  haying  right  to  be  prefent  at,  and  vote 
therein,  (hould  be  prefent  at  the  affembly  holden  for  fuch 
purpofe,  and  concur  therein,  as  would  refpe£tively  have 
been  neceflary  to  be  prefent,  and  concur  in  fuch  election 
or  aft  in  cafe  the  fame  had  been  made  or  done  upon  the 
day,  or  within  the  time  appointed  for  that  purpofe  by  the 
charter  or  ufage  of  fuch  city,  borough,  or  corporation,  fav- 
ing  only,  that  the  prefence  of  die  mUyor,  bailiff  or  bailiffs, 
or  other  chief  officer  or  officers  who  ought  to  prefidc  (hould 
not -be  neceflary"— —f.  5, 

And  it  was/iirther  enaded,  "that  if  any  mayor,  bailiff 
or  bailiffs,  or  other  chief  officer  or  officers  of  any  city. 

Vol.  II,        '  D  borough. 


/ "» 


34  T  H  E      L  A  W- 

borough,  or  town  corporate,  ihould  voluntarily  abfent  him- 
fclf  or  themfelves  from,  or  knowingly  and  defignedly  pre- 
vent or  hinder  the  ele6Hon  of  any  other  mayor,  bailiff*  or 
other  chief  officer  in  the  fame  city,  borough,  or  town  cor- 
porate, upon  the  day  or  within  the  time  appointed  by  char- 
ter or  ancient  ufage  for  fuch  eleiJlion,  the  perfon  or  perfons 
fb  offending,  being  thereof  lawfully  convidled,  fhould,  for 
^very  fuch  offince,  fufffer  imprifonment  for  the  fpace  of 
fix  months  without  bail  or  mainprise,  and  fhould  be  for 
ever  difabled  to  take,  hold,  or  exercife  any  office  bejonging 
to  the  fame  city,  borough,  or  corporation"- — -f.  6, 

And  it  was  further  ena^ed,  "  That  if  it  fhould  happen 
that  noelc<SHon  fhould  be  made  of  the  mayor,  baililFor  bai- 
-lif&,  or  other  chief  officer  or  officers  of  any  city,  borough, 
or  town  corporate,  on  the  day  or  within  the  time  appoint- 
ed by  charter  or  ufage  for  that  purpofe,  and  that  no  ele<5tion 
of  fuch  officer  or  officers  fhould  be  made  purfuant  to  the  di- 
reftions  before  prefcribed,  or  fuch  eleSfion  being  madejhould 
afterwards  become  void^  in  every  fuch  cafe  it  fhould  and 
might  be  lawful  for  his  majefly*s  court  of  King's  Bench,  on 
motion  to  be  made  in  the  faid  court,  to  award  a  writ  or 
writs  of  mandamus,  requiring  the  members  or  perfons  of 
-fuch  city,  borough,  or  town  corporate,  having  a  right  to 
vote  at,  or  to  do  any  other  afl:  necefTary  to  be  done  in 
order  to  fuch  ele£lion  refpe<9:ively,  to  aflemble  themfelves 
on  a  day  and  at  a  time  to  be  prefixed  in  fuch  writ  or  writs, 
and  to  proceed  to  the  elcdlion  of  a  mayor,  bailiff  or  bailiffs, 
or  other  chief  officer  or  officers,  as  the  cafe  fhould  require, 
and  to  do  every  aft  neceflary  to  be  done  in  order  to  fuch 
eledlion,  or  to  fignify  to  the  faid  court  good  ca^fe  to  the 
contrary,  and  thereupon  to  canfe  fuch  proceedings  to  be 
had  and  made,  as  in  any  other  cafes  of  writs  of  mandamus 
granted  by  the  faid  court  for  eleftion  of  officers  of  cor- 

,;  porations; 


OF     CORPORATIONS.  2S 

porations ;  and  of  thd  day  and  time  appointed  in  and  by 
any  fuch  writ  or  writs  of  mandamus  for  holding  fuch  af- 
fembly,  public  notice  in  writing  fhould,  by  fuch  pcrfon  as 
the  faid  court  fhould  appoint,  be  affixed  in  the  market-place, 
or  fome  other  public  place  within  fuch  city,  borough,  or 
town  corporate,  by  the  fpace  of  fix  days  before  the  day  fo 
appointed,  and  fuch  officer  and  other  perfon  refpeftively, 
'  fliould  prefide  in  fuch  affembly,  as  ought  to  have  prefided  at 
the  eledtion  of  fuch  mayor,  bailiiF  or  bailiffs,  or  other  chief 
officer  or  officers,  or  at  the  doing  any  other  a£i:  neceilary 
to  be  done  in  order  to,  fuch  election,  in  cafe  the  fame  had 
been  made  or  done  on  the  day  in  the  former  part  of  the  a£t 

prefcribed  for  that  purpofe'* f.  2. 

And  after  reciting,  "  that  in  certain  boroughs  and  towns 
corporate,  the  mayor,  bailiff  or  bailiffs,  or  other   chief 
officer  or  officers,  was  or  were  to  be  nominated,  ele£led,  or 
fworn  at  a  court  leet,  or  view  of  frankpledge,  or  fome  other 
court,  and  that  by  reafon  of  the  contrivance  or  default  of 
the  lord  or  his  fteward,  or  fuch  other  officer  by  or  before 
whom  fuch  court  ought  to  be  held,  in  not  holding  the  fam^ 
or  by  fome  accident,  it  had  happened,  and  might  thereafter 
happen,  that  no  due  nomination,  ele£lion,  or  fwearing  of 
fuch  mayor,  bailiff  or  bailiffs,  or  other  chief  officer  or  offi« 
cers  had  been  or  might  be  had  or  ^rnade ',"  it  wa^  further  en-» 
a£led^  ^^  that  it  ihouldand  might  be  lawful  for  his  Majefty's 
court  of  King's  Bench,  on  motion  to  be  made  in  the  (aid 
court,  to  award  a  writ  of  mandamus,  requiring  the  lord  or 
his  fteward  or  other  officer,  by  or  before  whom  fuch  court 
ought  to  be  held,  to  hold,  or  caufe  to  be  holden,  iiich  court 
leet  or  other  court,  and  to  dp  every  other  afl:  neceffary  to 
be  done  by  him  in  order  to  fuch  nomination,  election,  or 
fwearing,  at  fuch  day  and  time  as  ihould  be  for  that  puirpofe 
judged  proper  by  the  faid  court  of  King's  6encb|  andibould 

D  2  be 


36  THE    law' 

be  appointed  in  fuch  writ,  or  to  fignify  to  the.faid  court 
good  caufe  to  the  contrary,  and  thereupon  to  caufe  (uch 
proceedings  to  be  had  and  made,  as  in  other  cafes  of  writs 
of  mandamus  granted  by  the  (aid  court,  for  holding  of  aiiy 
court ;  and  of  the  day  and  time  appointed  in  and  by  any 
fuch  writ  of  mandamus  for  holding  fuch  court,   public  no- 
tice in  writing  fhould,  by  fuch  perfdn  as  the  faid  court  of 
King's  Bench  fhouJd  appoint,  be  affixed  in  the  market- 
place, or  fome  other  public  place  within  fuch  borough 
or  town  corporate,  by  the  fpace  of  fix  days  before  the  day 
fo  appointed :    and  that  where  a  nomination  of  perfons,  in 
order  to  the  cleftion  of  any  fuch  mayor,  bailiff  or  bailiflTs, 
or  other  chief  officer  or  officers,  was  to  be  made  at  fuch 
court  leet  or  other  court,  in  every  fuch  Cafe,  after  fuch  no- 
mination made,  all  and  every  other  a£l  and  zAs  neceflary 
to  be  done  in  ordtfr  to  fuch  eleftion,  fhould  be  had,  made 
and  done  at  fuch  ailembly,  and  in  fuch  manner  and  form 
as  the  fame  ought  to  have  been  had,  made  and  done,  in 
cafe  fuch  ele£^ion  had  been  made  on  the  day  next  after  the 
expiration  of  the  time  prefcribc?d  for  fuch  eleftion  by  the 
charter  or  ufage  of  fuch  borough  or  corporation,  according 
to  the  directions  before  meiltioned  in  the  aft"— f.  3, 

On  this  ftatute  it  has  been  frequently  determined,  that 
the  power  of  the  court  to  grant  a  mandamus  to  go  to  an 
eleftion,  is  not  confined  to  the  cafe  where  there  has  been  no 
cleflion  af  ifljl :  but  that  where  there  has  been  an  eleftion 
in  point  of  fa£l,  yetj-if  from  the  circumftances  laid  before 
the  court,  it  (hall  appear  clearly  that  the  eledb'on  cannot  be 
fupported,  a  mandamus  Ihall  iffue ;  but  that  if  the  eleftion 
appear  doubtful,  no  mandamus  Ihall  iffue,  till  the  perfon 
a£lually  cxercifing  the  office,  be  oufted  by  judgment  in  quo 
warranto. 

The  firft  cafe  we  find  reported  on  this  fubje<9:  is  that  of 
Boffiiney,  otherwife  Tintagcl,  in  Cornwall,  which  occurred 

in 


OFCORPORATIONS.  37 

!n  the  8  G.  2  (a) ;  and  in  which  the  application  for  a  man- 
damus  to  go  to  thp  ele<5tion  of  a  mayor,  was  oppofed,  on 
the  ground,  that  on  the  ufual  day  one  Robins  was  chofen 
and  fworn  into  the  office;  and  it  was  therefore  contended, 
that  as  there  was  an  a<5lual  officer,  he  ought  to  be  oufted 
before  a  mandamus  fhould  be  granted.    But  the  court,  on 
confideration,  held  that  the  writ  ought  to  iffiiej  the  words 
of  the  a£l  being,  ^  if  no  due  election  be  made,"  and  Robins 
not  having  the  fhadowofa  right:— i^The  intention  of  the 
a<S):,  they  faid,  was  to  give  the  corporation  a  rightful  officer 
as  foon  as  poffible,  whereas  this  pretence  would  wafte  the 
whole  year ;  they  did  not,  however,  lay  this  down  as  a  ge- 
neral rule ;  but  faid  that  thefe  writs  were  difcrctionary,  and 
that  they  might  refufe  the  application,  where  therje  was  a 
probable  tleOion  and  room  to  doubt.— They  added  that,  in 
the  prefent  cafe,  no  harm  was  done,  becaufe  this  was  not  a 
peremptory  mandamus,  and  it  might  be  returned  that  ther^ 
was  a  rightful  officer  (^).  , 

Im  a  cafe  (<:),  which  occurred  the  next  year,  Loj-d  Hard-? 
wicke  mentioned  this  cafe  of  Tintagel  as  th^  only  cafe  iin 
which  fuch  a  mandamus  had  been  granted ;  and  he  faid  the 
reafon  of  it  was,  that  it  was  quite  a  clear  cafe,  and  the  cor- 
poration was  without  a  mayor:  otherwife,  he  faid,  it  would 
not  have  been  granted. 

In  the  report  of  another  cafe  (d)y  in  the  fame  year,  the 
fame  chief  juftice  is  reported  to  have  faid,-  "that  this  was 


(a)  Cafe  of  the  Borough  of  Boffiney,  alias  Tintagel^  in  Cornwall, 
a  Str.  1003. 

N.  B.  It  is  not  the  jfirft  cafe  of  9  mandamus  to  go  to  ^e  de£lion  of 
a  mayor 5  but  the  firft  were  thei-e  had  been  an  a£iual  ele^n.  Vid. 
Andr,  279. 

(b)  Qu .  Whether  the  latter  obfervation  will  not  apply  to  ev/ry  cafe  ? 

(c)  Rex  V.  Holmes,  H.  9  G.  2,  B.  R.  cited  3  Bur.  i454'. 
^4)  Rex  V.  corporation  of  Oxford,  M.  9  G.  a,  B.  R.  H.  i7«- 

I>3  a  remedial 


3$  THE    LAW 

a  remedial  law,  and  that  therefore  the  court  fhould  make  it 
as  effedual  as  the  words,  or  any  conftruftion  of  them  could 
warrant ;  and  that  the  court  had  always  made  a  liberal  con- 
ftru£tion  of  them :  and  to  have  mentioned  the  cafe  of 
Tintagel  as  an  example. 

In  a  cafe  about  five  years  after  this  [a)j  it  was  held,  that 
though  it  appeared  tn  point  of  .fa£t,  that  there  was  an 
election,  yet  if  on  confidering  the  circumftances,  there  was 
good  reafon  to  think  it  void,  the  court  would  award  a  man- 
damus to  go  to  a  new  ele£Uon,  and  not  wait  the  event  of 
any  controverfy  about  the  former. 

Ik  the  cafe  of  the  common  councilmen  of  Carmar- 
then (^),  this  point  was  more  folemnly  determined.— It 
appeared,  that  on  the  day  after  the  charter  day,  one  J.  S. 
was  elefted  mayor  by  the  burgefles  at  large ;  but  that  J.  N. 
who  prefided  at  the  eiedtion,  was  not  the  next  perfon  in 
Jrank  or  oiSce  to  the  mayor  of  the  precf^ding  year.  The 
Chief  Juftice{f},  in  delivering  the  opinion  of  the  court, 
obferved,  that  it  bad  been  faid,  that  the  court  was  only 
empowered  by  the  ftatute  to  award  a  mandamus,  '^  where 
it  ihall  happen  that  no  ele£fion  of  a  mayor,  or  other  chief 
officer  of  a  city,  borough,  or  town  corporate  fhall  be  made 
upon  the  day,  or  within  the  time  appointed  by  charter  or 
ufage  for  that  purpofe;  or  where  no  elefJion  of  fuch  officer 
Ihall  be  made  purfuant  to  the  dire£Uons  of  this  ftatute ;  or 
fuch  elciftion  being  made,  (hall  afterwards  become  void ;" 
and  that  it  had  been  inferred,  that  as  there  had  been,  in  the 
prefent  cafe,  an  eledlion  in  point  of  faft,  of  a  mayor,  and 
that  elecSHon  was  not  yet  determined  to  be  void,  the  court 
could  not  award  a  mandamus  to  proceed  to  a  new  elediont 

{a)  Cafeof  Aberyftwith,  2  S(r.  ii57,Tr.  14G.  2. 
(J?)  R?x  V.  Newlham  et  al',  common  councilmen  of  CarmartKen. 
Sayeraii,    Vid,  vol.  i,  403,  (r)  Ryder. 


OF    CORPORATIONS.  39 

But  he  faid,  the  court  were  of  opinion)  that  th^  words  "  no 
eleftion"  in  the  ftatute,  ought  to  be  conftrued  "  no  legal 
eleftion;'*  and  that  confequently,  though  there  had  been 
an  eledtion  in  faft,  the  court  had  a  diicretiona^y  power,  on 
confidering  all  the  circumftances  of  the  eled^ion,  to  award 
or  not  to  awardamandamuS)  as  the  juftice  of  the  cafe  might 
require :  that  if,  on  all  the  circumftances  of  an  eledtion  in 
fadt,  the  legality  of  it  were  doubtful^  the  court  ought  not 
to  award  the  writ,  it  being  proper,  in  fuch  a  cafe,  that  the 
legality  of  the  ele£):ioi^ihould  be  tried  in  an  information  in 
the  nature  of  quo  warranto :  but  that  if  upon  all  the  car* 
cumftances  of  an  ele(Stion  in  fadl,  it  appear  clearly  to  be  il- 
legal, the  court  ought  to  award  the  writ,  becaufe  it  would 
be  nugatory  to  try  the  legality  of  it  in  that  way.  The 
election,  in  the  prefent  cafe,  was  clearly  illegal,  becaufe  the 
perfon  who  ought,  by  the  directions  of  the  ftatute,  to  have 
prefided  at  it,  did  not  prefide— <-and  therefore  the  mandamus 
was  awarded. 

On  the  authority  of  this  and  the  preceding  cafes,  was 
decided  that  of  Cambridge  (a)y  o(  which  the  circumftances 
were  thefe  :— On  the  charter  day  they  had  in  feft  chofen  a 
perfon  to  be  mayor  i  but  it  appeared  that  he  w^  an  officer 
of  the  army  juft  gone  to  North  America,  and  that  there 
was  not  the  leaft  probability  of  his  returning  before  the  ex- 
piration of  the  year.  The  court  held  thi^  to  be  merely  a 
colourable  ele£bion  which  could  not  be  fupported;  and 
therefore,  on  the  principles  laid  down  in  the  cafe  imme- 
diately preceding,  awarded  a  mandamus  to  go  to  a  new 
eleftion. 

It  is  no  objection,  that  the  application  is  not  made 
within  the  year,-— On  this  point  Lord  Hardwicke,  in  a 

(a)  Rex  V.  Mayor,  &c,  of  Cambridge,  4  Bur.  200S,  vid.  vol.  i,  339. 

D  4  cafe 


40  THELAW 

cafe  before  mentioned  (a)j  exprefied  himfelf  to  this  tfkSt  j 
**  that,  whatever  might  be  the  intention  of  the  aft  in  this 
refpeft,  there  were  no  words  to  confine  the  application  for 
a  mandamus  to  the  year ;  that  as  the  purpofe  of  the  aft  was 
to  prevent  the  diflblutioniof  corporations,  and  to  give  an 
opportunity  for  the  eleftion  of  head  officers,  though  the 
regular  time  had  paflfed,  he  thought  the  mandamus  (hould 
iiTue,  though  it  appeared  there  had  been  no  niayor,  that  is, 
no  legal  mayor  for  fome  years;  for  though  there  had  been 
eleftions,  the  perfons  elefted  had  bAn  fucceffively  oufted 
by  judgments  in  quo  warranto  informations.'' 

iNa  fubfequent  cafe  (^),  which  occurred  in  the  i6  G.  2, 
application  was  made  for  a  mandamus  to  proceed  to  the 
eleftion  of  bailiffs,  coroners,  chamberlains,  and  the  other 
annual  officers  of  the  corporation  of  Scarborough,  there 
not  having  been  any  good  officers  fince  the  year  1736 ;  and 
of  thofe  who  had  in  h&  been  chofen,  fe veral  having  had  j  udg- 
ment  of  oufter  againft  them :    on  confidering  the  cafes  of 
Tintagel  and  Aberyftwith,  we  are  told,  the  court  granted 
the  application,  as  there  was  no  reafonable  expeftation  of 
fupporting  the  right  of  the  prefent  poiTeflbrs :   and  they 
granted  it  not  only  for  the  head  officer,  but  alfo  for  the 
others,  as  they  were  neceffarily  conftituent  parts  of  the  cor- 
poration, and  equally  within  the  reafon  of  the  ftatute. 

But  where  there  is  a  mayor  or  other  officer  in  point  of 
faft,  he  ought  to  be  made  a  party  to  the  rule  to  fhew  caufe 
why  a  mandamus  fhould  not  iffuefora  new  eleftion,— A 
rule  had  been  granted,  calling  on  John  Bankes,  Efq.  lord 
of  theleet  for  the  borough,  manor,  or  lordfhip  of  Corfe-r 
Caftle,  in  the  Ifle  of  Purbeck,  in  the  county  of  Dorfet ; 
and  alfo  on  the  ftew^rd  and  bailiff,  and  deputy  bailiff  of  th^ 

^  (a)  Rex  V.  corporation  of  Oxford,  B.  R.  H.  178.    Ante,  p.  37. 
(^)  Cafe  of  the  corporation  of  Scarborough,    2  Str.  1189. 

Ifet 


OF     CORPORATIONS.  4I 

leetand  borough;  and  alfo  on  twenty-four  other  perfons, 
who  had  been  fummoned)  and  ready  to  be  returned  as  a 
Jury  to  a  former  court  of  the  leet:  "  to  fliew  caufc  why  a 
writ  or  writs  pf  mandamus  jfhould  not  iffue,  direfled  to 
them,  Requiring  the  lord  and  his  fie  ward  to  hold  a  court 
leet,  and  the  baililF,  pr,  in  his  abfence,  his  deputy,  to  return 
and  deliver  to  the  faid  court  leet  the  pannel  or  lift  of  the 
jury,  by  the  deputy  bailiff  fummoned  on  the  24th  of  O6lo- 
ber  preceding;  and  requiring  the  fteward,  at  the  court  fo 
to  be  holden,  in  the  ufual  manner  to  swear  the  said 
JURY ;  and  alfo  requiring  them  the  aforefaid  jurors  fo  im- 
pannelled  and  ready  to  be  fworn  as  aforefaid,  to  be  fworn 
in  due  forni  at  the  faid  court,  and  then  and  there  to''pro- 
ceed  to  the  election  of  a   mayor  of  the  faid  borough  of 
Corfe-Caftle  for  th?  prefent  year,  and  to  do  every  a6t  ne- , 
ceffary  to  be  done  by  therii' rejpe^hely  for  that  parpofe,  ac- 
cording to^'  the  form  of  the  ftatute  in  fugh  cafe  made  and 
provided.*' 

Cause  was  not  ftewn  on  the  merits;  but  objeftion 

taken  to  the  wapt  of  notice  to  the  perfon  a<Sually  in  pof- 

feflion  of  the  office  of  mayor,  who,'  it  w^s  faid,  ought  in 

common  juftice  to  be  heard  in  defence  of  his  right,  before 

,  the  iffuirig  pf  a  mandamus  to  proceed  to  the  elc£tion  of 

another  in  his  ftead. — The  court  were  of  this  opinion  ;  and, 

fhe  rule  having  been  amended  by  inferting  the  nam^  of  the 

aftual  mayor,  caufe  was  afterwards  (hewn  againft  making 

the  rule  abfolute. — On -which  occafion  Lord  Mansfield 

propofed,  that  the  counfel  forHhe  defendants  iSiould  file 

their  affidavits,  that  the  profecutor's  counfel  might  be  able 

'  to  judge  whether,  on  the  affidavits  on  both  fides  compared 

together,  it  was  a  doubtful  election,  and  fit  to  be  tried  on 

^n  information  in  nature  of  quo  warranto,  or  whether  it 

was  a  mere  colourable  eleftion,  and  clearly  void :  for  that, 

^  the  former  fliould  pr^ve  to  be  the  cafe,  the  court  ought 

not 


42  T  H  E     1  A  W 

not  to  gfant  the  mandamus ;  if  the  latter,  they  ought. -^ 

m 

The  counfel  for  the  profecutor  intimated,  that  if  he  (hould 
find  that  the  eIe£lion  was  doubtful  or  quefiionabky  he  would 
pyrfue  the  rule  no  further,  and  afterwards,  having  read 
the  affidavits,  gave  it  up  {a), 

,  Lord  Mansfield  further  obferved  in  this  cafe,  that  the 
rule,  as  it  flood,  confining  the  mandamus  fpecially  to  the 
very  individuals  who  were  fummoned  on  the  24th  of  Oc- 
tober, was  certainly  wrong.  So, that  it  could  not  be  made 
abfolute  in  that  form. 

On  the  third  feftion  of  this  ftatute,  a  mandamus  will  lie, 
commanding  the  proper  perfon  to  hold  a  court  leet,  in  or- 
der that  a  particular  perfon  may  be  prefented  and  fworn 
into  any  of  the  offices  within  the  intent  of  the  ftatute,  on  a 
fuggeftion  of  his  having  been  duly  elected. 

This  appears  from  the  cafe  of  the  King  and  Willis; 
which  was  an  application  for  a  mandamus,  to  be  dire£led 
to  the  defendant  as  fteward  of  the  court  leet  for  the  borough 
of  Chriftchurch,  in  Hampfhire,  commanding  him  to  hold 
a  court  leet,  and  to  fwear  and  charge  a  jury  to  prefent  all 
things  proper  to  be  prefented,  in  order  that  they  might 
prefent  to  the  fteward  John  Dale,  the  perfon  duly  eledled 
mayor  of  the  borough.  In  fupport  of  the  motion  an  affida- 
vit was  produced,  ftating  the  conftitution  of  the  borough, 
and  that  Dale  had  been  defied  mayor. — In  oppofition  to 
the  application  an  affidavit  was  read,  ftating  the  election  of 
another  perfon  to  the  office  :  and  it  was  contended,  that  on 
the  feftion  which  was  made  the  foundation  of  the  motion, 
a  mandamus  would  not  lie  for  prefenting  3.  particular^perfon^ 
but  only  a  general  mandamus  for  holding  a  court  leet,  and 
doing  all  things  necefTary  for  the  eledlion  of  a  mayor. 
It  was  likewife  contended,  that  as,  in  the  prefent  cafe,  there 

{a)  Rex  V.  Baiikes,  Efq,  et  aP.  3  Bur.  1452, 

w^re 


OF     CORPORATIONS.  43 

were  two  perfons  who  pretended  to  have  been  eledled,  the 
writ  for  which  the  prefent  application  was  made  would 
predetermine  the  queftion ;  and  would  oblige  the  jury  to 
prefent  one  perfon  as  duly  eledled,  when  perhaps  their 
opinion  might  be  in  &vour  of  another.  But  the  whole 
court  were  clearly  of  opinion  that  the  application  was 
proper;  for  that  the  plain  intent  of  the  aft,  which  was 
Very  general,  was  to  enforce  the  performance  of  all  fuch 
afts  as  were  neceflary  for  completing  the  admiffion  or 
eledlion  of  the  officers  or  members  of  corporations,  one  of 
which  was  a  prefentmeht :  and  as  it  was  fvvorn  that  Dale 
had  been  elefted,  there  could  be  no  harmJn  pointing  out 
by  the  writ,  what  in  particular  the  fteward  and  jury,  who 
were  merely  minifterial,  were  further  to  do  :  this  could  be 
of  no  prejudice  to  any  onej  becaufe  the  mandamus  not 
being  peremptory,  if  Dale  was  not  well  eledled,  that,  or 
any  other  matter  againft  the  fuggeftion  in  the  writ  (a)^ 
might  be  returned;  and  then  the  queftion  would  be  put  in 
"a  proper  method  of  trial  (^}. 

At  common  law,  .when  the  day  appointed  by  the  con- 
ftitution  of  a  corporation  for  the  eleftion  of  a  new  rmyoVy 
was  the  day  on  which  the  old  went  out  of  office,  the  latter 
had  no  power  to  adjourn  the  eleftion  from  that  to  the  fub- 
fequent  day,  unlefs  he  had  a  power  of  holding  over;  and 
if,  in  faft,  he  had  made  fuch  an  adjournment,  an  elecSlion, 
completed  at  the  adjourned  meeting,  would  have  been  void : 
but  this  inconvenience  feems  to  have  be^n  remedied  by 
thisftatute:  the />/«a^j/ intent  of  it,  indeed,  was  certainly 
to  enable  corporations  to  proceed  to  an  intirely  new  elec- 

{a)  The  report  fays,  "  any  other  matter  fuggefted  in  the  writ  j" 
which,  it  is  apprehended,  cannot  be  coii'efl. 
^b)  R^x  V.  Willis.    Andr.  Z79* 

tiohj 


44  T  H  E     L  A  W 

tlon ;  and  it  does  not  cxprefsly  give  authority  to  the  mayor 
to  adjourn  an  eleftion  begun  and  not  completed  oh  the  char- 
tei^  day ;  but  the  words  of  it  feem  general  enough  to  com- 
prehend this  cafe,  and  the  court  will  make  a  liberal  con* 
ftruftion  of  them ;  as  the  inconvenience  arifing  from  an 
cleftion  not  comjJetedj  is  as  great  as  that  arifing  from  a 
total  omiflion  (a). 

The  ftatutc  mentions  fome  time  between  the  hours  of 
ten  in  the  morning  and  two  of  the  afternoon,  as  the  time 
<Jf  meeting  for  an  election  to  be  made  according  to  the  pro- 
vifions  of  it ;  but  it  has  been  held,  that  this  is  direffory  and 
not  reflri£live^  and  intended  only  to  prevent  furprize 
which  might  arlfe  from  beginning  at  inconvenient  tim^s  % 
and  that,  therefore,  where  no  furprize  appears,  an  eledlion 
begun  or  continued  by  adjournment,  at  any  other  time^ 
is  good  {h). 

Doubts  have  been  exprcfled,  whether  theyiw^perfon 
who  ought  to  have  prefided  at  an  ele£lion  on  the  day  ap- 
pointed by  the  charter  or  ufage,  may  prefide  at  the  election 
held  on  the  day  af\er^  according  to  the  dire£):ions  of  the 
ftatute  (r) ;  from  the  plain  conftruftion  of  the  words  of 
the  firft  feclion  of  the  aft,  it  appears  ^o  me  that  he  cer- 
tainly may  \  but  if  he  be  abfent,  "  then  fuch  other  peribn, 
having  right  to  vote^  being  the  neareft  then  prejent  in  place 
or  office  to  theperfon  fo  abfenting  himfelf,  fhall  hold  the 
court  and  prefide  at  the  meeting," 

By  the  the  fecond  fedion,  ^^fuch  officer  or  other  perfon 
refpcftively  fhall  prefide  in  the  afiembly,"  held  in  obe- 
dience  to  a  mandamus,  awarded  according  to  the  direc- 
tions of  that'  fedlion,  "  as  ought  to  have  prefided  at  the 
ele£tion  in  cafe  the  /ame  had  been  held  on  the  day  before 

(^2)  Per  LJ.  Hardwickc  in  the  cafe  of  Ricx  v.  Poole.    B.  R.  H.  %j, 
{b)  Pereund.  ibid.  (0  B.  R.  H.  27. 

prefcribed,'* 


OFCORPORATIONS.  45 

prefcribed,"  that  is,  on  the  day  after  the  day  appointed  by 
charter  or  ufage. 

Here  a  queftion  may  arife,  "  Whether  the  chief  officer 
or  officers  who  ought  to  hold  the  afleihbly  on  the  day  ap- 
pointedf  by  charter  or  ufage,  can  prefide  at  an  aiTembly 
held  for  an  election  in  obedience  to  a  mandamus  ?" — At 
an  allembly  held  according  to  the  direftions  of  the  fir/I 
fe(Slion,  the  chief  officer  or  officers  may  clearly  prefide; 
becaufe  it  is  only  in  cafe  of  his  or  their  abfence  that  the 
perfon  next  in  rank  is  to  prefide,  bat  as  the  words  of  refe- 
rence in  the  fecond  feiiion  are  in  the  Angular  number,  it 
may  be  doubted  whether  they  are  not  confined  merely  to 
the  latter. — I  apprehend,  that  where  the  chief  office  of  a 
corporation  is  filled  by  two  perfons,  they  are  to  be  con- 
fidered  as  one  officer  (tf ),  and  that  therefore  the  words  of 
reference,  though  in  the  angular  number,  extend  to  the 
former. 

By  the'  fourth  fe<9:ion,  the  oaths  are  to  be  taken  by  the 
perfon  or  perfoos  elected  he/ore  the  officer  who  fliall  pre- 
fide at  the  eledlion. 

If  a  perfon  elected  under  a  mandamus,  in  purfuance  of 
this  a(9",  be  a^uaJfy  fworn  before  the  prefiding  officer;  but 
on  being  profecuted  in  an  information  in  the  nature  of  quo 
warranto,  fet  forth,  by  miftake,  a  fwearing  according  to 
the  direftions  of  the  charter,  in  the  cafe  of  an  eIe£lion  on 
the  charter  day ;  he  will  not,  at  the  trial,  be  permitted  to 
"  give  evidence  of  a  fwearing  according  to  the  direftions  of 
the  ftatute.     Sueh  was  the  opinion  of  the  Chief  Baron, 
who  tried  the  caufe  in  the  cafe  of  Roger  Phillips,  mayor  of 
Carmarthen,  which  on  an  application  for  a  new  triaJ^ 
Lord  Mansfield,  and  the  reft  of  the  Court  of  King's  Bench, 


{«)  Vid.  Rex  r.  Smart,    4  Bur.  zt^r,  and  vol.  i,  ^%t, 

held 


46  THE     LAW 

no  authority  to  fwear  him,  whether  they  were  aldermen  or 
held  to  be  right;  becaufe,  to  have  given  evidence  of  a 
fwearing  different  from  that  fet  forth  in  his  plea,  would 
have  been  to  fet  up  a  title  at  the  trial  different  from  that 
under  which  he  claimed  on  the  record  (a). 

But  if  the  perfon  whofe  title  Is  impeached,  fet  forth  an 
ele£tion  under  the  ftatute,  and  a  fwearing  be/ore  the  per- 
fon who  was  in  hSi  the  prefiding  officer^  and  two  others ; 
it  is  doubtful  whether  evidence  of  a  fwearing  before  the 
prefiding  officer  only  will  fupport  the  plea ;  or  whether 
evidence  of  a  fwearing  before  the  prefiding  officer  and  the 
other  two,  according  to  the  allegation  of  the  plea,  will 
fupport  the  title. 

In  the  cafe  of  the  King  and  Jonas  Maiden,  (h)  the  defend- 
ant pleaded  an  eleilion- under  the  fecond  fe6lion  of  the  aft, 
and  fet  forth  a  fwearing  before  Charles  Maiden,  William 
Smart,  and  John  Edwick,  the  three^  fenior  aldermen  pre- 
fent  at  the  ele£lion ;  but  did  not  exprefsly  allege  that  Charles 
Maiden  was  the  prefiding  officer :  an  iffue  was  taken  on 
this  fwearing,  whether  Smart  and  Edwick,  before  whom 
betook  the  oath,  were  aldermen?  The  jury  found  that 
they  were  not:  but  they  found  likewife  that  Charles  Mai- 
den was  the  proper  prefiding  officer,  and  that  the  defend- 
ant was  fworn  before  him  and  the  other  two. — The  cafe 
coming  before  the  court,  on  an  application  for  a  new  trial, 
this,  among  other  queftions,  was  agitated,  "  whether  the 
fwearing,  as  fet  forth  and  proved,  was  a  fufficient  fwearing 
within  the  flatute  ?"  In  favour  of  the  affirmative,  it  was 
contended,  that  it  clearly  appeared  on  the  record,  that  the 
defendant  was  fworn  before  the  proper  perfon,  though  it 

(a)  Rex  V.  Roger  Phillips,  mayor  of  Carmarthen,    i  Bur,  292. 
(b).  Rex  V.  Jonas  Maiden,  4  Bur,  2135. 

alfo 


OPCORPORATIONS.  47 

alfo  appeared  that  he  was  fworn  before  t^o  others  who  had 
not;  fo  that  the  determination  of  that  queftiort  did  not 
affeil  the'prefent;  and  the  fwearing  could  not  be  void  for 
having  been  before  two  who  had  no  authority,  as  well  as 
before  the  proper  perfon,  becaufe  the  law  referred  the  a<3: 
to  the  perfon  who  had  power  to.  do  it.  It  was  likewife 
contended,  that  the  prefent  cafe  was  not  like  that  of  Roger 
Phillips ;  for  that  the  latter  had  fet  out  a  defeSiive  title  j  he 
had  pleaded  an  //^proper  fwearing,  and  therefore  could 
not  be  permitted  to  give  evidence  of  i  proper  fwcsLYing 
which  he  had  not  pleaded :  but  here  was  no  defe^^  of  title  ; 
the  title  was  only  defeftively  fet  out,  and  therefore  the 
defendant  was  not  precluded  from  giving  fuch  evidence  as 
was  neceflary  to  prove  it  complete. — On^he  other  fide  it 
was  obferved,  that  in  the  cafe  of  Roger  Phillips,  there  was. 
In  fadl,  no  fuch  fwearing  as  was  pleaded,  but  that  here 
the  fwearing  was  exaftly  as  it  was  alleged ;  which,  it  was 
contended,  muft  be  bad  both  upon  plea  and  upon  evidence ; 
that  the  defendant  ought  to  have  been  fworn  before  the  pre- 
fiding  officer  at  the  time  when  he  was  chofen ;  whereas  it 
appeared  by  his  own  confeiEon,  that  he  was  fworn  before 
Charles  Maiden  and  two  others  in  the  charadler  of  alder- 
men, and  not  before  Charles  Maiden  as  prefiding  officer; 
a  fwearing  which,  it  was  contended,  no  evidence  could 
make  good.— Without  deciding  this  point,  the  court,  on 
the  whole  of  the  cafe,  granted  a  new  trIU,  obferving  that 
the  defendant  might  apply  for  leave  to  amend  his  plea,  or 
not,  as  he  thought  proper  (^). 

It  being  required  that  the  perfon  defied,  in  purfuance 
of  this  a£l,  fhall  t^ke  the  oaths  before  the,,  perfon  prefiding 
at  the  meeting,  it  may  be  made  a  queftion,  "  whether  the 


{ay  RexY.  Jonas  Maiden,  ^Bimxiss* 

perfon 


48  T  H  E    L  A  W 

perfon  prefiding  can  be  clefted  ?" — Anmformation  having 
been'  brought  againft  Charles  Maiden,  to  (hew  by  what 
authority  he  exercifcd  the  office  of  bailiiF  of  Maiden,  h© 
pleaded  an  eledlion  in  purfuance  of  the  firft  fe£lion  of  the 
ftatute,  fliewing,  that  no  bailiff  or  bailiffs  of  the  preceding 
year  being  prefent  at  the  affembly,  he  himfelf,  having  a 
right  to  vote  in  the  eleftion,  and  being  the  neareft  then 
'Present  in  place  and  office  to  the  bailiffs,  prefided  at  the 
aflbmbly,  and  was  elefted, — He  then  (hewed,  that  after 
his  election,  and  before  his  admiffion  into  the  office,  he 
did,  at  the  fame  meeting,   take  the  oaths  before  Jonas 
Maiden,  William  Smart,  and  John  Edwick,  "then  and 
there  being  three  other  fenior  aldermen  of  the  faid  borough, 
and  the  only  aldermen  who  were  prefent  at  that  meeting, 
befide  him  the  faid  Charles.  Maiden,  and  was  thereupon, 
according  to  the  form  of  the  ftatute,  admitted  into  the 
office." — The  profecutor,  in  his  replication,  took  feveral 
iffues,  one  of  which  was,  that  Jonas  Maiden,   William 
Smart,  and  John  Edwick  were  not,  nor  was  any  of  them 
next  in  place  and  office  to  the  bailiffs* — The  defendant  re- 
joined, that  Jonas  Maiden,  before  whom,  together  with 
William  Smart  and  John  Edwick,  he,  the  defendant,  took 
the  faid  oaths,  ^  was  the  neareft  then  prefent  in  place  an  J 
office  to  the  bailiffs  of  the  fard  borough,  except  him  the 
faid  Charles  Maiden,  who  was  the  neareft  then  prefent  in 
place  and  office  to  the  bailiffs  of  the  faid  borough,  and  who 
prefided  at  th^  faid  aifembly,  and  who  was  eleifted  and  no- 
minated to  be  one  of  the  bailiffe  of  the  faid  borough,  as  in 
the  plea  was  mentioned. 

To  this  rejoinder  the  profecutor  demurred;  and  for  one 
of  his  caufes  of  demurrer  (hewed,  "  that  the  faid  Charles 
Maiden  ought  to  have  taken  the  oaths  before  fuch  officer  or 

perfon 


or    CORPORATIONS.  49 

perfon  as  prefided  at  the  eleftion,  as  being  neareft  then 
prefent  at  fuch  eledtion  in  place  and  office  to  the  bailiffs  or 
baJlifF  of  the  faid  borough  for  the  preceding  year,  nothcing 
then  prefent." 

The  defendant  having  joined  in  demurrer,  the  court 
agreed  that  he  was  not  properly  fworn  in  before  the  pre- 
fiding  officer ;  and  Mr.  Juftice  Afton  cited  a  cafe  of  the 
King  and  Nance  ("« ),  in  which  the  court,  after  having  taken 
time  to  confider,  held  that  the  fourth  claufe  of  the  aft  is 
general  and  pofitive,  without  exception  or  reftridion, 
'*  that  the  officer  elefted  fhall  take  the  oath  or  oaths  by  l^w 
required,  at  the  time  of  his  admiffion,  hefore/uch  officer 
as  fhM  prefide  at  fuch  eledlion  in  purfuancc  of  the  a£l,"— 
And  he  obferved,  that  there  the  court  did  not,  nor  well 
could,  as  that  cafe  was  circumftanced,  enter  mto  the 
queftion  **  whether  the  perfon  elefted  could  be  fworn 
before  himfelf  ?"  And  that  it  was  not  neceffary  to  deter- 
mine it  heres  becaufe  it  was  not  alleged  that  he  was  fo 
'fw6rn(^}. 

It  is  to  be  obferved,  that  this  ftatute  takes  no  notice  of 
the  power  granted,  by  fome  charters,  to  the  chief  officers 
to  hold  over  (f^ ;  but  from  the  general  tenor  of  it,  a  claufe 
granting  fuch  a  power  fecms  to  be  rendered  altogether 
ufelefs.— On  the  one  hand,  the  ftatute  enafts,  that  though 
no  eleftion  fhall  be  made  of  a  chief  officer  on  the  ufual  day, 
or  though  an  eledion  made  (hall  be  afterwards  avoided,  by 
fuch  omiffion  or  avoidance  ^*  the  corporation  fhall  not  be 
deemed  to  be  difTolved,  or  difabled  from  eleding  fuch 
officer  for  the  future." — But  it  was  the />«r/>^  of  a  claufe 
-of  holding  over  to  prevent  fuch  difTolution  or  difability : 
for  this  purpofe,  therefore,  fuch  a  claufe  is  now  unnecef- 
fary.— On  the  other  hand,,  the  ftatute  is generalin  direft-  ' 

(a)  Rex  V.  Nance,  Trin.  1741.     14  and  15  G.  i.  B.  R.        ' 
ib)  Rex  V.  Chailes  Maiden,  4  Bar.  1x30.        (c)  Vid^vol,  i,  384. 

Vol.  11.  E  ing 


50  T  H  E      L  A  Vr 

ing  an  ele£iion  on  the  day  after  the  ufual  day,  or  on  a  day 
appointed  by  mandamus.— But  the  efftSl  of  a  power  of 
holding  over,  when  no  eleilion  was  made  on  the  ujual 
day,  was  to  prevent  an  eleftion  till  the  return  of  the  famfe 
day  in  the  fubfequcnt  year,  except  in  the  cafe  of  death  or 
removal  (^ ). — The  effe^  of  fuch  a  power  is  done  away  by 
the  ftatute.  It  is,  therefore,  both  unnecefiary  and  inef- 
ficient. 


Section  IX. 

Of  the  power  of  Corporations  over  their  members  and  officers., 

Every  corporation  aggregate  has  a  power  neceilarily 
incident  to  it,  of  admitting  members  and  appointing 
officers,  and  removing  them  for  reafonable  caufe,  without 
any  exprefs  grant  conferring  on  them  fuch  a  power. — It 
was  long  held,  however,  that  the  power  of  disfranchife^ 
ment  or  amotion  did  not  belong  to  any  corporation  which 
did  not  poiTefs  it  by  the  exprefs  words  of  a  charter,  or  by 
prefcription.  This  opinion  feems  to  have  been  firft  enter-, 
tained  in  the  cafe  of  James  Bagg,  and  afterwards  fup- 
portW  by  the  authority  of  the  fecond  refolution  in  that  cafe, 
as  reported  by  Lord  Coke  {b).  This  cafe  came.before  th« 
court  on  the  return  to  a  mandamus  which,  had  been  awarded 
to  the  mayor  and  commonalty  of  the  borough  of  Plymouth, 
commanding  them  to  reftore  James  Bagg  to  the  office  of 

(fl)  Vid.  Rex  v.  Robinfon,  mayor  of  Helfton>  x  Str.  555. 
ib)  James  Bagg^s  cafe,  11  Co.  99.  a. 

2  one 


OF    CORPORATIONS.  5I 

-one  of  the  twelve  chief  burgeffes  or  magiftrates  of  that 
borough. — The  return,  after  having  alleged  a  great  many 
reaibns  for  his  removal,  ftated  an  order  made  by  the 
jmayor  and  nine  of  the  chief  burgejfes^  "  that  unlefs,  before 
the  next  feffions  after  the  date  of  the  order,  he  fhould  re- 
concile himfelf  to  the  mayor  and  his  brethren,  and  promife 
to  demean  himfelf  in  an  orderly  and  temperate  manner  for 
the  time  to  come,  he  fhould  be  totally  removed  from  the 
bench,  and  a  new  mafter  chofen  in  his  roomff'  and  then 
ftated,  that  in  confequence  of  his  not  haying  fo  reconciled 
himfelf,  but  having  continued  his  former  behaviour,  he 
had  been  afterwards  removed  by  the  mayor  and  commonalty 
of  the  borough  (tf). 

The  reporter,  after  ftating  in  the/^y?  refolution,  that 
the  caufes  of  removal  fet  out  in  the  return  were  held  infuf- 
ficient,  gives  the  fecond  in  thefe  words,  **  that  no  freeman 
of  any  corporation  can  be  disfranchifed  by  the  corporation, 
unlefs  they  have  authority  to  do  it  by  the  exprefs  words  of  the 
charter^  or  by  prefcription  5  but  if  they  have  not  authority 
either  by  charter  or  prefcription,  then  he  ought  to  be  con^ 
viSied  by  courfe  of  law  before  he  can  be  removed  j  and  it 
appears  by  Magna  Charta,  c.  29,  nuUus  liber  homo  capi- 
atur  vel  imprifonetur,  aut  difleifietur  de  libro  tenemento 
fuo,  vel  Ubertatibu^  vel  liberis  confuetudinibus  fuis^  &c. 
nifi  per  legale  judicium  parium  fuorum,  vel  per  legem  terra  : 
and  if  the  corporation  have  power,  by  charter  or  prefcrip- 
tion, to  remove  him  for_  a  reafonable  caufe,  that  will  be 
per  legem  terrie;  but  if  they  have  no  fuch  power,  he  ought. 
to  be  convifted  per  judicium  parium  fuorum^  &c.  as  if  a 
citizen  or  freeman  be  attainted  of  forgery,  or  perjury,  or 
confpiracy,   at  the  King's'  fuit,   or  of  any  other  crime 

{a)  Lord  Mansfield,  in   i  Bur.  538,  ftates  this  removal  as  having 
been  by  \\itjek&  body  of  the  mayor  and  nine  0/  the  mailers, 

E  2  whereby 


£2  THE    LAW 

whereby  he  is  become  infamous,  upon  fuch  attainder  they 
may  remove  him :  fo,  if  he^c  convi£led  of  any  fuch  of- 
fence,  which  is  againft  the  duty  and  truft  of  his  freedom, 
and  to  the  public  prejudice  of  the  city  or  borough,  whereof 
he  is  free,  and  againft  his  oath,  as  if  he  has  burnt  or  de- 
faced the  charters,  or  evidences  of  the  city  or  borough,  or 
rafed  or  corrupted  them,  and  is  thereof  convidled  and 
attainted,  thefe  and  the  like  are  good  caufes  to  remoVc 
him."      ^  * 

Th£  firft  part  of  this  refdution,  taken  by  itfelf,  is  an  at)- 
folute  denial  of  the  power  of  corporations  to  disfranchife 
any  of  their  members,  under  any  circumftances,  ^^  unlefs 
they  have  fuch  a  power  by  the  exprefs  words  of  a  charter 
or  by  prefcription :"  but  the  whole  of  the  refolution  put 
.  together  amounts  to  this,  ^'  that,  where  they  have  no  fuch 
exprefs  power,  they  cannot  disfranchife  a  man  without  zpre^ 
vious  conviftion,  by  due  courfe  oflaw^  of  fome  offence  which 
amounts  to  a  reafonable  caufe;   but,    '^  that  vtrhere  they 

have  fuch  exprefs  power,  they  may  disfranchife  without 

♦ 

conviftion:"  and  the  reafon  given  for  this  diftinftion  is, 
that  in  the  latter  cafe,  the  mere  fail  of  removal,  is^^r  legem 
terra^  which  fatisfies  one  of  the  provifions  of  magna  charta; 
but  that  in  the  former,  a  previous  conviflion  is  neceflary 
to  fatisfy  the  other. 

On  the  authority  of  this  cafe,  however,  the  incidental 
power  of  disfranchifement  or  amotion  has  been  frequently 
denied  in  fuch  terms  as  thefe",  *'  There  muft  be  a  cuftom 
or  a  ftatute  to  warrant  a  disfranchifement"  ia)  j  "  the  cor- 
poration  ought  to  fhew  a  power  either  by  cuftom  or  under 
their  letters  patent"  (i) ;  and,  "  a  freeman  fhall  not  be  re- 
moved, but  by  charter  or  prefcription"  (c ). 

ia)  Yates's  cafe,  Style,  477, 4I0. 

{h)  I  Lord  Raym.  392.    Rex  v.  mayor  of  Coventry. 

(f)  Rex  V.  mayor,  &c.  of  Doncailer.    %  Ld.  Raym,  J566. 

In 


OF    CORPORATIONS.  fj 

In  favour  of  f^e  oppoiite  opinion  we  find  nothing  till  the 
beginning  of  the  reign  of  G.  2,  but  this  obfervation  of  Lord 
Chief  Baron  Hale,  ."  that  every  corporation  as'z  corpo- 
ration may  take  the  refignation  of  a  member,  and,  by 
confequence,  for  good  caufe  may  remove  (a) :  for  if  a 
corporation  have  no  inherent  power  to  disfranchife, 
"how  can  they  do  it  even  upon  requeji  of  the  corporator 
himfelf?"  {h) 

In  .the  fecond  year  of  G.  2,  an  application  for  an  infor- 
mation in  the  nature  of  quo  warranto,  was  made  againfl: 
Lord  Bruce  on  a  fuppofed  forfeiture  of  the  place  of  re- 
corder ;  recourfe  was  had  to  this  mode  of  proceeding  on  an 
apprehenfion,  that  as  there  was  no  claufe  in  the  charter 
empowering  the  corporation  to  remove,  they  had  no  other 
remedy;  the  court  rejected  the  application  on  this  prin- 
ciple, that  if  there  was  an  aftual  forfeiture,  the  defendant 
was  out  of  the  ofEce  and  the  corporation  might  choofe 
another ;  if  there  was  no  forfeiture,  the  offence  ftated  was 
only  a  mifdemeanor,  for  which  a  quo  warranto  would  not 
lie:  "Befides,"  they  added,  "the  modern  opinion  has 
been,  that  the  power  of  amotion  is  incident  to  the  corpo- 
ration, though  Bagg's  cafe  feems  contrary"  (^). 

This  modern  opinion  has  been  confidered  as  completely 
eftabliihed  eyer  fince  the  cafe  of  the  King  and  Richardfon, 
in  the  31  G.  2  (rf).  An  information  in  the  nature  of  quo 
warranto  having  been  filed  againfl:  the  defendant  to  fliew 
by  what  authority  he  claimed  to  be  one  of  the  portmen  of 
the  town  of  Ipfwich,  he  fet  out  in  his  plea  certain  letters 
patent  of  incorporation,  which  among  other  things  granted, 
"  that  all  eleftions  of  the  portmen,  and  of  every  of  them, 

{,a)  Tidderley's  cafe,  i  Sid,  14.^ 

{h)  X  Bur.  529.    '  (r)  z  Str.  819,  820. 

(<0  Rex  V.  Richardfon.    i  Bur.  517. 

E  3  ovi 


54  THB    LAW 

on  the  death  or  removal  of  any  of  them,  'or  otherwife,  in 
whatfoever  manner  happening,  Ihould  be  made  by  the  others, 
or  refidue  of  the  portmen  for  the  time  being,  or  the  greater 
part  of  them:  ^'  he  then  fet  oijt  a  removal  of  nine  portmen 
by  an  aflembly  of  the  corporation  athrge,  under  the  name  of 
a  great  court,  and  an  elefkion  of  himfelf  by  the  only  remain- 
ing portman  of  the  borough ;  but  he  did  not  ftate  any  power 
in  the  corporation  to  remove,  either  by  charter  or  prcfcrip- 
tion.  The  council  for  the  profecution,  relying  on  the  au- 
thority of  Bagg's  cafe,  and  others  founded  upon  it,  denied  that 
a  corporation  had  a  power  inherently  or  incidentally  to  re- 
move, and  contended  that,  as,  in  the  prefent  cafe,  it  was 
neither  given  by  charter  nor  claimed  by  prefcription, 
the  removal  of  the  nine  portmen  was  without  authority ; 
and  they  treated  the  obfervation  of  the  court,,  in  the  cafe  of 
Lord  Bruce,  as  deferving  little  credit,  becaufe  the  modern 
opinion  there  hinted  at,  no  where  appeared. 

The  counfel  for  the  defendant  urged,  that  this  power 
of  removal  was  implied  and  inherent  2ind  incidental  to  the 
conftitution  of  every  corporation  5  for  that  the  law  gave, 
whatever  was  neceflary  to  the  enjoyment  of  a  grants  on 
which  principle  thfey  contended,  that  all  corporations  muft 
have  inherent  in  them  a  power  to  exercife  aSs  effential  to 
their  exiftence  and  prefervation ;  that  the  power  of  amo- 
tion was  one  of  thefe  ^  and  that  this  queftion  was  not 
affedled  by  magna  charta  j  becaufe  a  man  might,  by  that, 
be  removed  from  his  freehold,  if  he  could  be'  fo  by  the  law 
of  the  landy  and  if  the  power  of  amotion  was  incident  to  a- 
corporation,  an  amotion  was  hy  the  law  of  the  land^  which 
took  pl3te  in  confequence  of  that  power. 

Lord  Mansfield,  in  delivering  the  opinion  of  the  court, 
ftated  the  fecond  refolution  in  Bagg's  cafe  in  the  words  of 
it  as  given  above  i    and,  after  diflributing  into  different 

claffes 


OF    CORPORATIONS.  55 

ciafles  the  oSet^es  for  which  a  corporator  or  oiEcer  of  a 
corporation  might  be  removed,  obferved,  tliat  the  diflinc- 
tion  taken  by  Lord  Coke  feemed  to  relate  to  the  power  of 
trialy  and  not  to  the  power  of  amotiMj  and  that  he  feemed 
to  lay  down  *'  that  where,  the  corporation  has  power  by 
charter  or  prefcription,  they  may  try  as  well  as  remove; 
but  that  where  they  have  no  fuch  power,  there  muft  be  a 
freviouf  convi£fhn  on  an  indiftment."    So  that  '  after  an 
indiiSlment  and  convidlon  at  common  law,'  continued  his 
lordfliip,  *  this  authority  admits,  that  the  power  of  amotion 
is  incident  to  every  corporation. The  law  of  corpo- 
rations was  not  fo  well  underftood  and  fettled  at  the  time 
of  Bagg's  cafe  as  it  has  been  fince ;  and  ^'whether  a  power 
of  amotion  was  incident  to  the  corporation"  could  be  no 
part  of  the  queftion  in  judgment  in  that  cafe,  nor  neceflary 
to  the  determination  of  it.     The  power  of  amotion  was 
there  exercifed  by  xhtfeleSf  body  5  and  the  caufe  was  tnfuffi^ 
dent We,  therefore,  think  the  court  was  well  war- 
ranted in  Lord  Bruce's  cafe,  to  controvert  the  authority  of 
the  proportion  colkSied  from  what  is  faid  in  Bagg*s  cafe, 
*'  That  there  can  be  no  power  of  amotion,  unkfs  given  by 
charter  or  claimed  by  prefcription :"  and  we  think,  that  from 
the  reafon  of  the  thing,  from  the  nature  of  corporations, 
and  for  the  fake  of  order  and  government,  this  power  is  in- 
cidents—Lord Coke  himfelf  fays(tf),  "  there  is  a  tacit 
condition  annexed  to  the  franchife,  which  if  he  break  be 
may  be  disfranchifed."    But  where  the  offence  is  merely 
againft  his  duty  as  a  corporator,  he  can  be  tried  for  it  only 
by  the  corporation.    Unlefe  the  power,  therefore,  be  inci- 
dent, franchifes  or  offices  might  be  forfeited  for  offences ; 
and  yet  there  would  be  no  means  to  carry  the  law  into 
execution/ 

{a)  zi  Co.  9S,  a. 

E  4  Thi» 


56      -    .  THE     LAW 

This  power,  like  every  other  incidental  {iov^er^  is  inci- 
dent to  the  corporation  at  large,  and  not  to  any  fele£l  body, 
and  as  applied  to  the  latter,  the  propofition  is  true  *'  that 
there  can  be  no  power  of  amotion,  unlefs  given  by  charter 
or  claimed  by  prefcription,  or  in  confequence  of  a  bye  law 
made  by  the  body  at  large."  But  as  all  the  powers  of 
corporations  are  the  fubjefts  of  pofitive  inftitution,  a  fele£l 
body  way  poffefs  the  power  of  amotion,  and  frequently 
does,  under  one  or  other  of  thefe  authorities  (^).— And 
It  is  laid  down  as  a  general  principle,  that  where  by  cuftom 
a  particular  body  has  acquired  that  power,  and  a  fubfe- 
quent  charter  in  fome  refpefts  new  modelling  the  con- 
ftitution  of  the  corporation,  but  retaining  the  particular 
body,  without  reftraining  its  cuftomary  power  of  disfran- 
chifemenl,  that  power  ftill  continues  in  the  particular 

body. In  the  city  of  Carlisle,  there  were  before  the 

2iftof  Jaly,  13  Car.  i,  twelve  aldermen  "  confifting  of 
the  moft  fufficient  citizens,  of  whom  one  was  annually 
chofen  mayor,  and  a  cuftom  had  prevailed,  that  this  body, 
or  the  greater  part  of  them,  of  whom  the  mayor  was  al- 
ways to  be  one,  might  remove  any  alderman  from  his 
place  and  office  of  alderman  for  juftandreaifonable  caufe :" 
.at  the  time  above-mentioned  the  corporation  obtained  a 
charter  from  Charles  the  firft,  which,  in  Tome  degree,  new 
modelled  its  conftitution,  but  retained  this  body  of  alder- 
men,  without  taking  any  notice  of  their  power  of  amotion ; 
on  their  afterwards  claiming  to  exercife  it,  the  court  of 
King's  Bench  {b)  thought  it  ftill  continued,  notwithftand- 
ing  the  charter ;  that  the  latter  did  not  extinguifti  anA  of 
their  ancient  privileges;  but  the  corporation  might  ufe 
them  in  the  fame  manner  as  before  (c).  ■ 

(/z)  Vid^the  cafe  of  Lyme  Regis,  Doug.  149,  (154.) 
(^)'  33  Car.  a.  {c)  Raym.  435,  439. 

This 


OF     CORPORATIONS*  ^j 

This  power,  whether  p'oflfefled  as  incident  to  the  corpo- 
ration  at  large,  or  vefted  in  a  particular  body,  muft  appear 
to  be  exercifed  at  a  regular  meeting  held  in  a  corporate 
ctiara^er,  or  at  leafl:  held  in' the  charafter,  by  virtue  of 
which  they  are  empowered  to  amove :'  thus,  where  it  ap- 
peared by  the  return  to  a  mandamus  that  the  common 
council  had  the  power  of  amotion^  and  it  was  alleged  as  a 
faft,  that  the  party  complaining  was  removed  by  thirty  of 
the  common  councilmen,  in  the  council  chamber  aflembled, 
the  court  held  this  to  be  infufficient;  becaufe  it  did  not 
appear  *'  that  the  thirty  common  councilmen  were  the/i 
and  there  afTembled  as  a  common  council,  as  they  might  be 
there  to  feaft,  or  for  other  purpofes  not  conne<2ed  with 
their  corporate  character"  {a) . 

A  MANDAMUS  having  been  direfted  to  the  mayor,  bai- 
liffs, and  burgefles  of.  the  town  of  Northampton,  com- 
manding them  to  reftore  one  Braithwaite  to  the  place  of 
common  councilman ;  they  returned,  that  by  letters  patent 
of  incorporation,  power  was  given  them  of  holding  a  com- 
mon council,  confifting  of  a  mayor,  two  bailiffs,  and  forty- 
eight  burgeffes ;  that  the  power  of  removing  any  common 
councilman  from  his  place  upon  juft  caufe,  was  given  to 
the  mayor,  bailiffs,  z-nAfuch  burgeffes  as  had  been  mayors ; 
that  Braithwaite  had  been  a  common  councilman,  and  com- 
mitted feveral  offences,  which  were  particularly  exprefled; 
and  that  the  common  council  affembled  together  and  pro- 
cured Braithwaite  to  be  fummoned,  but  that  he  did  not  ap- 
pear to  anfwer ;  on  which  he  was  removed  from  his  office 
and  place  in  the  common  council,  *^  by  the^  mayor  and  hutf^ 
gejfes^  by  the  authority,  and  according  to  the  chai'ter  afore- 
faid." 

(/i)  Rex  V.  Taylor,  3  Salk.  231, 

It 


5$  THE    lAW 

It  was  objefted,  that  this  amotion  was  not  according  to 
the  authority  given  by  the  charter ;  for,  that  it  was  iaid  to 
be  by  the  mayor  and  burgefles,  fo  that  it  might  have  been 
by  the  mayor  and  all  the  burgefles,  many  of  whom  might 
not  have  been  mayors,  whereas  the  charter  confined  the 
power  to  the  mayor  znifuch  of  the  burgefles  as  had  been 
mayors :  but  the  objedlion  was  over- ruled,  on  the  ground, 
that  it  muft  be  intended  that  all  the  burgefles  were  pre- 
fent,  and  agreed  to  the  amotion ;  and  that  as  it  was  alleged 
to  be  by  the  mayor  and  burgefl!es  according  to  the  charter, 
the  diflent  of  the  burgeflles  who  were  qualified,  was  not  to 
be  prefumed  (a). 

This  power  of  amotion,  when  poflefled  as  incident  to 
the  corporation  at  large,  cannot  be  exercifed  without  rea- 
fonable  caufe ;  nor  can  It  be^^  exercifed  either  by  the  cor- 
poration at  large,  or  by  a  fele6l  body,  whether  given  by 
charter  or  claimed  by  prefcription,  if  it  be  given  or  claim- 
ed only  in  general  terms  {b) :  but  if  a  charter,  by  exprefs 
words,  empower  either  the  corporation  at  large,  or  a  k\tSt 
body,  to  remove  an  officer  at  pleafure,  or  empower  them 
to  choofe  him  during  pleafure,  they  may  in  either  cafe  re- 
move him  without  caufe  (r).     So,  a  corporation  by  pre- 
fcription may,  by  cuftom,  have  the  power  of  removing  an 
officer  at  pleaitire :  but,  in  the  return  to  a  mandamus,  com- 
manding them  to  reftore  an  officer  fo  removed,  it  will  riot 
be  fufficient  to  fl:ate  "  that  they  are  a  corporation  by  pre- 
fcription, and  that  the  King,  by  letters  patent,  reciting 
that  they  had  a  cuftom  to  remove  at  pleafure,  confirmed 
that  with  other  cuftoms;"  they  muft  allege  the  cuftom  in 


(tf)  Braithwaite's  cafe,  i  Ventr.  19,  ao. 

{b)  Dyer  33a,  pi.  28,  m  marg.  T.  4  Jac.  B.  R. 

(r)  Sir  T.  Jones,  52,    3  Kcb.  ^^-j,  Raym.  i88.    i  Vcntr.  77, 81. 

pofitivc 


OF   CORPORATIONS.  5^ 

pofitlve  termsy  and  not  iimply  by  way  of  recital  in  the 
letters  patent  (a).  * 

So.  if  an  officer,  either  by  the  provifion  of  a  charter,  or  ^ 
byxuftom,  be  eligible  in  the  alternative  for  life,  or  during 
pleafure,  and  he  be  chofen  to  continue  during  pleafure,  he 
may,  at  any  time,  be  removed  without  cauie(^):  and 
where  an  officer  is  removeable  at  pleafure,  or  chofen  to 
continue  during  pleafure,  the  election  of  another  is  a  deter- 
mination of  his  office,  without  any  formal  removal  (c),  or 
notice  of  the  intention  to  remove  h.im(d).  So,  if  the 
mayor  for  the  time  being  have  power  to  ele£b  a  town  clerk, 
it  follows  of  courfe,  that  he  may  remove  the  former  town 
clerk  at  his  pleafure  (/)• 

But  where  an  officer  is  removeable  at  pleafure,  the  cor- 
poration, in  their  return  to  a  mandamus,  commanding 
them  to  reftore  him,  ought  to  rely  folely  on  that  circum- 
ftance ;  for  they  cannot  take  advantage  of  it,  if  they  return 
a  caufc  and  that  caufe  be  not  fufficient  j  becaiife  it  will  then 
appear,  that,  at  the  time  they  removed  him,  they  did  not 
mean  to  proceed  on  their  power  to  remove  him  at  will  f/), ' 

There  are  fome  offices  in  corporations,  which,  when 
there  is  no  cuftom  or  exprefs  provifion  of  a  charter  to  the 
contrary,  are  generally  underftood  to  be  held  for  the  life  of 
the  poffeffor,  unlefs  he  be  removed  for  reafonable  caufe : 
fuch  are  the  offices  of  alderman,  jurat,  or  capital  burgefs, 
who,  in  their  official  capacity,  are  conftituent  members  of 
the  corporation ;  and  of  recorder,  town  clerk,  and  other^ 
who  are  generally  not  members  of  the  corporation,  but 
merely  minifterial  officers  or  fervants. A  claufe  in  a 

(a)  Rex  V,  mayor,  &c.  of  Coventry,    i  Ld.  Raym.  391,  a. 

{b)  2  Show.  69,  70.     I  Ventr.  342,  Pepis's  cafe. 

(r)  I  Str.  674,  Rex  v.  mayor  of  Canterbury, 

(^)  z  2Ceb,  641.         (^)  X  Sid.  15.         (/)  »Ld.  Raym  1240. 

charter 


6o  THE    LAW 

charter  giving'  an  arbitrary  power  of  removal,  is  good  as 
applied  to  the  latter  (<?),  bi|t,  according  to  the  opinion  ex- 
prefled  in  fotne  books,  is  void  as  applied  to  the  former  (^}. 
The  fame  obfervation  applies  to  a  claim  of  this  power  by 
cuftom.— —  Yet  if  the  corporation  poflefs  a  power  by 
charter  or  by  cuftom  to  ele<a  an  alderman  or  other  officer 
of  an  equivalent  denomination,  to  contiriue  during  plea-, 
fure,  and  they  fo  eleft  him,  they  may  remove  him  at  plea- 
fure ;  becaufe,  by  the  exprefs  conftitution  of  the  corpo- 
ration, the  prefumption  of  his  holding  the  office  for  life  is 
excluded. 

A  COMMON  freeman  cannot  be  deprived  of  his  freedom 
at  the  pleafure  of  the  corporation  at  large,  or  of  any  feleS 
body,  whether  that  power  be  claimed  by  charter  or  pre- 
fcriptioii  (r )• 

The  cafe  of  a  common  councilman  is,  in  ieveral  books, 
diflingui(hed,  in  this  refpedl,  from  that  of  an  alderman ;  it 
being  frequently  held  that  a  power  of  removal  is  good  as 
to  the  former,  and  void  as  to  the  latter. 

One  Warren  having  obtained  a  writ  of  reftitiition,  com- 
manding the  corporation  of  Coventry  to  reftore  him  to  the 
place  of  commt)n  councilman,  from  which  he  complained 
of  having  been  removed,  *'The  corporation  returned,  that 
they  had  a  cuftom  to  ele<5):  any  one  to  be  of  the  council,  and 
to  remove  him  at  pleafure,  and  that  Warren  was  removed, 
&c.  the  court  held  the  return  was  good  \  and  took  this  dif- 
ference,  that  where  a  man  Was  a  freeman  or  alderman, 
they  could  not  remove  him  from  his  freedom  or  place 
without  caufe,  and  that  iu  fuch  cafe,  fuch  a  cuftom  was 

(/z)  Vid.  all  the  authorities  before  cited. 

{b)  1  Keb.  812,  813,  Warren's  cafe,  a  Crb.  540,  cited  Raym.  18S. 

I  Ventr.  77, 82.        .  • 

{c)  Vid,  Warren's  cafe  before  cited. 

void, 


or    CORPORATIONS.  6l 

void,  becaufe  the  party  had  a  freehold  in  his  freedom  or 
place ;  but  to  be  of  council  was  a  thing  collateral  to  a  cor- 
poration."— Warren's  council  then  fuggefted,  that  he  was 
an  alderman,  and  had  been  removed,  on  which  a  new 
writ  was  ifliied  to  reftore  him  to  his  aldermanfhip  [a). 

This  cafe  of  Warren  is  cited  in  feveral  fubfeqjLient  cafes, 
and  the  authority  of  it  recognized  {b). 

In  a  much  later  cafe,  which  arofe  in  the  fame  corpo- 
ration of  Coventry,  it  was  ftated  in  the  return  to  a  manda- 
mus, that  the  defendants  were  a  corporation  by  prefcrip- 
tion,  and  that  King  James,  by  letters  patent,  reciting^  that 
they  had  a  cuftom  to  ele6l  any  one  to  be  of  the  common 
council,  and  to  remove  him  at  pleafure,  confirmed  that 
among  other  cuftoms;  it  then  concluded,  that  by  force  of 
theTtf/^  cuftom  for  time  immemorial  ufed,  and  according 
to  the  form  of  the  aforefaid  letters  patent,  they  removed 
the  plaintiff.— This  exception  was  taken  to  this  return, 
that  by  the  eledion,  the  plaintiff  had  an  eftate  for  life,  and 
that  a  cuftom  to  remove  an  officer  for  life,  without  caufe, 
was  void. — Holt  C.  J.  over-ruled  the  exception,  on  the 
ground  that  it  was  not  returned  that  he  was  an  officer  for 
life,  but  on  the  cpntrary,  that  he  might  be  removed  at  plea- 
fure ;  and  that  if  the  conftitution  of  a  corporation  were  to 
eleft  officers  removeable  at  pleafure,  they  muft  purfue  their 
cuftom,  and  could  not  eledl  for'a  longer  or  more  durable  ' 
interefti  but  his  eftate  was  always  liable  to  the  determr- 
nation  annexed  to  it  by  the  cuftom  (c).  A  peremptory, 
mandamus^  however,  was  granted  on  another  obje£bion ; 
that  the  cuftom  was  not  pofitively  alleged,  but  only  by 
way  of  recital  in  the  letters  patent  (^/). 

{a)  %  Cro.  540,  fays  vid.  26  H.  8,  5,  vid.  2  Rol.  Rep.  112. 

{b)  Vid.  Raym.  188.     i  Ventr.  77,  82. 

(f)  Rex  V.  mayor,  &c.  of  Coventry,    x  Ld.  Raym.  391. 

(</)  Vid,  ante,  p;  59.  ' 

In 


62  THE    LAW 

In  4  fubfequent  cafe  (^),  the  defendants,  to  a  nundamut 
commanding  them  to  reftbre  one  J.  S.  to  the  office  of 
commpn  councilman,  returned,  that,  by  their  charter,  they 
might  remove  the  common  councilmen  at  their  difcretion 
whenever  and  as  olften  as  they  plesled,  and  that  by  their 
difcretion  they  removed  J.  S.  It  was  urged,  that  they 
ought  to  have  Ihewn  fome  reafon,  but  the  court,  on  conji-^ 
deration^  held,  that  as  their  charter  gave  them  a  power  of 
removal  at  difcretion,  that  was  unneceflary. 

To  the  power  of  amotion,  or  disfranchifement,  the 
power  of  holding  a  corporate  meeting  for  that  purpofe  is 
jieceflarily  incident,  whether  the  former  be  in  a  feledl  body 
or  in  the  corporation  at  large;  and  therefore  it  is  not 
neceflary  that  the  latter  fhould  be  exprefsly  given  by  char- 
ter or  claimed  by  cuftom  {h). 

The  caufe  for  which  a  member  of  a  corporation  is  dif- 
franchifed,  or  an  officer  removed,  muft  be  fomething  which 
has  arifen  fubfequently  to  the  admiffion  of  the  one  to  the 
enjoyment  of  his  franchife,  or  of  the  other  to  theexercile  of 
his  office :  the  power  of  disfranchifement  or  amotion  can- 
cot  be  exercifed  for  a  defecSl  of  original  qualification  (r)  \ 
that  can  only  be  queftioned  by  a  proiecution  by  informa- 
tion in  the  nature  of  quo  warranto. 

The  offences  for  which  a  corporator  may  be  disfran- 
chifed,  or  a  corporate  officer  removed,  have  been  diflributed 
into  three  diflin(3:  clafies  (i). 

First,  Such  as  relate  merely  to  his  corporate  or  offi- 
cial chara£br,  and  amount  to  breaches  of  the  condition 
tacitly  or  exprefsly  annexed  to  his  franchife  or  office. 

'  {a)  Rex  V.  Burgum  Andover.    i  Ld.  Raym.  710. 
ijbi)  Vid.  Rex  V.  mayor,  &c.  of  Lyme  Regis,  Doug.  153,  (148), 

(r)  Kjex  V.  mayor,  &c.  of  Lyme  Regit,  Doug.  80,  81,  85. 
(<0  B.  R,  H,  154, 155.    X  Bur,  538. 

Secondly, 


» . 


OF    CORPORATIONS.  6^ 

SiicoNDLY,  Such  as  have  no  immediate  relation  to  his 
corporate  or  official  character,  but  are  in  themfelves  of  fo 
infamous  a  nature,  as  to  render  the  offender  unfit  to  enjoy 
tf»y  public-franchife ;  fiich  as  perjury,  forgery,  &c. 

And,  Thirdly,  offences  of  a  m/V^^nature,  being  not  only 
againft  his  corporate  or  official  duty,  but  alfo  indicSlable  at 
common  law. 

With  refpe£t  to  the  firft  fort  of  ofiences.  Lord  Coke, 
in  James  Bagg's  cafe  («),  expreffes  himfelf  thus :  "  The 
caufe  of  disfranchifement  ought  to  be  grounded  on  an  2b£t 
which  is  againft  the  duty  of  a  citizen  or  burgefs,  and  to  the 
prejudice  of  the  public  good  of  the  city  or  borough  of 
which  he  is  a  citizen  or  burgefs,  and  againft  the  oath  which 
he  took  when  he  was  fworn  a  freeman  of  the  city  or 
borough ;  for  although  one  fh.all  not  be  charged  in  a  ju^* 
dicial  court  (^),  for  the  breach  of  a  general  oath,  which  he 
took  when  he  became  officer,  minifter,  citizen,  or  burg«fs, 
yet  if  the  zSt  which  he  doth  be  againft  the  duty  and  truft 
of  his  freedom,  and  to  the  prejudice  of  the  city  or  borough, 
and  alfo  againft  his  oath,  it  enforces  much  the  caufe  of  his 
removal,  and  there  is  a  condition  in  law  tacitly  annexed  to 
his  freedom  or  liberty,  which  if  he  break,  he  may  be  dif« 
franchifed." 

This  defcription,  in  the  terms  of  it,  relates  onfy  to  a 
common  freeman ;  but  the  doArine  is  equally  applicable 
to  an  officer,  whether  merely  minijierial  or  a  member  of 
die  corporation.  « 

To  burn  or  deface  the  charters  or  evidences  of  the  cor- 
poration; or  to  rafe  or  corrupt  the  books,  are  offences 
againft  the  corporate  duty  of  a  corporator,  for  which  he 


(/r)  Firft  refolution.    iiCo.  9S>a»    iKeb.  ^97. 
ib)  u  /•  indi^led  for  perjury. 


may 


64  '      THE     LAW 

may  be  removed  (a) ;  but  in  the  cafe  of  a  rafure  of  the 
books,  the  party  muft  appear  to  have  a^ted  malicioufly^ 
and  to  the  detriment  of  the  corporation,  for  it  might  hap- 
pen that  the  entry,  as  it  ftood,  was  wrong,  and  that  he 
only  made  it  as  it  ought  to  be  (b). 

So,  if  he  make  a  riot  in  difturbance  of  an  election  of  a 
mayor  or  other  ofEcer  (r),  or  endeavour  to  hinder  one  of 
die  aldermen  from  attending  the  common  council,  or  hin* 
der  others  who  have  a  right  to  attend,  from  going  thither 
to  do  the  bufmefs  of  the  corporation  [d) ;  fo,  if  he  continue 
in  court  and  make  orders,  after  the  court  is  adjourned : 
thus,  where  the  bailiffs  of  the  corporation  of  the  town  of 
Kingfton  upon  Thames  held  a  court  for  the  purpofe  of 
appointing  an  attorney  of  the  court,  and  on  the  appearance 
of  riot  and  difordcr  adjourned  the  court,  and  commanded 
all  perfons  to  depart,  and  they,  with  their  party,  left  the 
town  hall;  and  fome  of  the  oppofite  party  continued  in  the 
ball,  infifted  that  the  court  was  not  didblved,  afErmed  that 
they  themfelves  were  a  court,  made  feveral  orders,  as  a(5ts 
of  court,  and  caufed  them  to  be  entered  in  the  court  book^ 
in  which  the  orders  of  the  court  were  ufually  entered :  It 
was  held,  that  this  was  fufiicient  caufe  "of  disfranchifement, 
becaufe  it  was  more  than  a  mere  oppofition  ;  they  had  pro- 
ceeded to  a£lion,  and  fet  up  one  government  againft  ano- 
ther, which  tended  to  fubvert  all  regular  and  peaceable  go- 
vernment within  the  town  (^). 

CiRCUMSTfANCES  which  have  no  immediate  relation  to 
the  corporation,  may  be  a  fufficient  caufe  to  remove  a  man 
from  an  office  of  maglftracy,  provided  they  be  fuch  as  ren- 
der him  incapably,  or  unfit  to  execute  the  office;   fuch. as 

(a)  }araes  Bagg's  cafe,  11  Co.  99,  a.       '    (b)  1  Ld.  Raym.  2%6, 
(c)  Rgym.  438.     .         '     (^)  B.  R.  H.  156. 
(0  Style,  477,  8,  9,480,1. 

habitual 


•  > 


OF     COR  PORATIONS,    <  65 

habitual  drunkerinefs  in  an  alderman,  though  if  a  man  were 
djunk  by  accident,  that  would  not  be  fufficient  caufe  td 
remove  him  (a). 

So,  it  has  been  held  to  be  a  fuilicient  caufe  to  remove  a 
man  from  the  pjace  of  alderman,  that  he  is  poor  and  can- 
not pay  the  taxes,  though  fuch  a  caufe  would  certainly  not 
be  fufficient  to  deprive  a  man  of  his  freedom  (b). 

Bankruptcy,  and  not  having  obtained  his  certificate, 
is  not  alone  fufficient  caufe  for  removing  a  man  from  the 
office  of  common  councilman,  though  fome  one  or  more  of 
the  confequences  of  bankruptcy  n^ay  eventually  become  fo  ; 
bankruptcy  itfelf  is  not  an  offence  agalnft  the  duty  of  his 
office ;    neither  is  it  an  offence  agaiqft  the  law  of  the  land, 
whatever  the  old  ftatutes  may  intimate  to  this  purpofe: 
a  man  may  be  a  bankrupt  without  any  fault  of  his  own  ; 
he  may  be  able  to  pay  twenty  (hillings  in  the  pound,  not- 
withftanding  his  bankruptcy ;   or  he  may  very  foon  obtain 
his  certificate  after  the  commiffion  has  iffiied  \  and  no  par- 
ticular cenfus  is  requifite  as  a  qualification  to  be  a  corpo- 
rator ;  a  power  to  disfranchife  a  man  for  having  become 
bankrupt,  might  be  turned  to  very  bad  purpofes,  hy  jun- 
toes  in  corporations,  or  under  particular  circumftances,  and 
with  particular  views :    a  run  upon  a  man  of  great  fortune 
and  credit  might  be  artfully  managed,  fo  as  to  reduce  him 
to  bankruptcy  ;  and  the^caufe  of  a  cqmmon  councilman,  in 
this  refpeft,  is  the  fame  as  that  of  a  common  freeman  {c). 

Old  age  is  not  a  fufficient  caufe  to  deprive  an  alderman 
of  his  office  (^). 

Non-attendance  at  the  courts  of  the  corporation  Is 
not  fufficient  caufe  of  removal,  when  the  prefence  of  the 

{^d)  Rex  V.  Taylor,  3  Salk.  231.  (Z»)  3  Salk.  229. 

(r)  Cafeof  Clegg.    aBar.  732,  vid.  1  vol.  44.8. 
(^)  2R0I.  Rep.  II*    2  Rol.  Abr,  456. 

Vol.  11.  F  party 


66  THE    LAW 

party  is  not  necejfary^  aiiS  no  particular  bufineis  is  ob- 
ftru6led  by  his  abfcnce,  though  his  abfence  be  wilful, 
and  notwithftanding  he  may  have  due  notice  to  attend : 
though  the  ufual  fignal  for  holding  a  court  may  be 
given,  a  member  may  not  know  of  it ;  though  he  know  of 
it,  he  may  be  innocently  abfent,  where  he  thinks  his  pre- 
fence  not  at  all  neceflary,  and  where  he  does  not  imagine 
that  any  bufmefsof  confequence  is  to  be  propofed:  there 
is  not  an  officer  or  freeman  in  the  kingdom,  who  is  a 
member  of  an  affembly,  who  might  not  be  removed  or 
disfranchifed,  if  fuch  a  caufe  were  fufficient.  At  timeS) 
every  alderman,  every  common  councilman,  not  neceflary 
to  the  conftitution  of  the  aflembly,  knowingly  omits  at- 
tending: this  do<ftrine  applies  equally  to  the  cafe  of  non- 
attendance  at  courts  held  occafionally,  and  courts  held  on 
regular  ftated  days-{tf}. 

In  a  plea  to  an  information,  in  the  nature  of  quo  war- 
ranto, the  defendant  alleged  a  cuftom,  "  that  the  bailifFs, 
burgefles,  and  commonalty,  for  the  time  being,  drfo  mawf 
tf  them  as  would  he  prefeiity  had  met,  and  of  right  ought  to 
meet  together  in  the  Moot-hall  yearly  and  every  year,  at 
divers  times  in  the  year;  on  the  8th  of  September  in  every 
year,  for  the  eleftion  of  bailifFs,  and  for  tranfa6^ing  th« 
other  bulinefs  of  the  borough,  ,and  again  at  Michaelmas  in 
every  year,  for  the  latter  purpofe,  and  at  fuch  other  time 
and  times  of  the  year  as  to  the  bailiffs  feemed  meet,  on  due 
notice  given,  for  the  better  ordering,  regulation,  ind 
government  of  the  borough ;  that  thefe  afTemblies  were 
called  the  Great  Courts  of  the  borough,  and  that  the 
bailijfFs,  for  the  time  being,  prefided  at  them.— That  therii 
were  twelve  burgefles  called  Portmenj  and  that  every 
portman,  during  the  time  of  his  being  in  that  office,  ought, 

(^)  Rex  v^  Richardfon.    i  Bur.  540^  54.1  • 

according 


OF      CORPORATIONS.  67 

according  to  the  cuftom  of  the  borough,  to  berefident  with- 
in the  town  or  liberties  of  it,  and,  by  the  duty  of  his  office, 
ought  to  attend  and  be  prefent  at  every  great  court,  to  advife 
and  affift  the  bailiffs,  for  the  time  being,  .in  the  good  rule 
and  government  of  the  borough. — That  for  the  fpace  of 
a  year  and  upwards,  before  the  8th  of  September,  1755, 
ten  perfons,  whofe  names  ;wrere  mentioned,  had  been  port- 
^men.ofthe  borough;  that  within  the  fpace  of  that  year^, 
four  occafional  great  c:ourts  were  held  on  the  days  particu- 
larly fpecified  in  the  plea,  and  that  before  the  holding  of 
each,  due  notice  had  been  given  of  the  intention  to  hold  it. 
That  on  the  8th  of  September,  a  great  number  of  the  bur- 
geffes  and  commonalty  affembled  in  the  Moothall,  and 
there  held  a  great  court  for  the  eledtion  of  bailiffs,  of  which 
due  notice  had  been  previoufly  given.— That  nine  of  the 
portmen,  whofe  names  were  mentioned,  did  not,  nor  did 
any  of  them  appear  at  the  fame  great  court,  but  wilfully 
^bfented  tbemfelves ;  and  that  they,  and  every  and  each  of 
them,  bad  wilfully  abfented  themfelves  from  the  other  great 
Courts,  and  from  every  of  them  during  the  year  laft  paff, 
and  had  voluntarily  neglected  to  attend  at  them,  or  at  any 
of  them,  by  which  each  of  them  negleSiedztA  omitted  the 
duty  and  execution  of  his.  office,  and  thereby  deprived  the 
then  bailiffs,  burgefles,  and  commonalty  of  the  borough 
affembled  at  the  faid  feveral  great  courts,  of  that  council, 
aid,  affiftance,  and  advice  which,  by  the  duty  of  his  office 
of  portman,  and  according  to  the  obligation  of   the  oath 
of  office  by  him  taken  in  that  behalf,  he  ought  to  have 
given." 

Such  were  the  offences  charged  againft  thefe  nine  port- 
men,  which  the  plea  alleged  to  be  ^*  to  the  great  hindrance 
and  delay  of  the  public  buiinefs  of  the  borough ;  to  the 
great  damage,  difappointment,  and  prejudice  of  the  bailiffs, 
burgeffe^  and  commonalty  of  the  borough,  and  to  the 

F  z  great 


68  T  H  E    L  AW 

great  hindrance,  and  in  open  fubverfion  of  the  good  rulf> 
government,  and  conftitution  of  the  fame." 

The  plea  then  ftated  the  proceedings  adopted  previouflf 
to  the  removal  of  thefe  nine  portmen,  and  their  confequent 
removal  for  thefe  offences. 

Lord  Mansfield  obferved,  ^^  that  it  was  not  ftated  thaf 
the  removed  portmen  had  perfonal  notice  of  the  holding  of 
thefe  great  courts ;  the  notice,  therefore,  muft  have  been 
by  fome  cuilomary  fign'al,  as  the  founding  ofahorn,  or 
the  tolling  of  a  bell,  of  v»rhich  the  removed  portmen  might, 
in  fa£l,  have  no  knowledge ;  that  it  was  not  alleged  that 
the  portmen's  prefence  was  necejfary  to  the  holding  of  the 
great  court,  but  that  on  the  contrary,  the  prefcription  vras 
alleged  to  be,  that  the  bailiffs,  burgefles,  and  commonalty, 
ox  fo  many  of  them  as  would  be  prefent,  had  aflembfed  in 
the  Moothall :  and  that  it  was  not  alleged  particularly,'that 
any  particular  bufmefs  was  obAru£led  or  defeated  by  the 
portmen'^  abfence;  the  plea  alleged,  indeed,  that  they 
wilfully  abfented ;  but  that  was  a  confequence  of  law;  for 
in  pleading,  fails  muft  be  alleged,  from  which  the  court 
might  judge  whether  the  abfence  was  wilful ;  on  which 
fa£ls  ifTues  might  be  taken  and  tried  by  the  jury.*'  Having 
applied  the  principles  before  ftated  to  this  cafe,  he  con- 
cluded by  faying,  that  it  was  not  necefTary,  and  would  b9 
highly  improper,  at  that  time,-  to  fay  what  kind  ofab-» 
fence,  or  under  what  circumftances,  non-attendance  might 
be  a  caufe  of  forfeiture ;,  it  was  fuificient  that  the  abfence, 
with  all  the  circumftances  alleged  by  this  plea,  was  not  a 
caufe;  and  the  court  were  unanimoufly  of  opinion  that  \\ 
was  not(^7). 

A  MANDAMUS  having  been  awarded  againft  the  mayor 
and  burgefTes  of  Lyme  Regis,  commanding  them  to  re- 
ftore  Arthur  Raymond  to  the  office  of  a  capital  burgefs, 

(tf)  Rex  V.  RichardToD*  Portman  of  Ipfwich*    x  Bur.  517. 

they 


OFCORPORATIONS.  69 

they  returned,  among  other  things,  that  the  mayor  and 
burgeiTes  had  been  immemorially  accuftomed  to  have  a 
'guild-houfe,  called  the  Moothall  i  that  from  time  imme- 
morial,  till  the  granting  of  the  letters  patent  therein  after, 
mentioned,  and  alfo  ever  fince,  there  had  been,  and  ftill 
was,  a  council  of  the  mayor  and  burgefles,   confifting  of 
the  mayor  and  certain  other  perfons,  who,  immemorially, 
until  the  granting  of  the  letters  patent,  were  called  coun- 
fellorsy  and  from  the  time  of  the  granting  of  the  letters 
patent,  capifal  burgeffes^  and  that  immemorially,  till  the 
letters  patent,  the  council  confifted  of  eleven  burgefles, 
inhabiting  and  refiding  within  the  borough  or  the  liberties 
thereof,  of  whom  the  mayor  was  one. — That  Queen  Eli- 
zabeth, in  the  33d  year  of  her  reign,  by  letters  patent, 
granted,  among  other  things,  that  there  fhould  be  for  ever 
in  the  borough,  a  mayor  and  eleven  other  burgefles  in  num- 
ber only,  out  of  the  burgefles  of  the  borough  to  be  chofen 
and  conftituted  according  to  the  form  in  the  letters  patent 
thereunder  fpeclfied,  who  ihould  be  called  capital  burgefles^ 
and  continue  for  life,  unlefs,  in  the  mean  time,  for  their  own 
bad  government  they  (hould  be  removed ;  that  the  faid  mayor 
and  eleven  burgeflis  thereby  appointed  by  name,  or  the 
greater  part  of  them,  the  mayor  for  the  time  being  one, 
whenever  to  them^  or  the  greater  part  of  them,  it  fliould  feem 
fit  in  their  foiind  prudence  and  difcretions,  fliould  choofe, 
not  exceeding  the  number  of  four^  other  perfons  of  the 
inhabitants  of  the  borough  to  be  other  capital  burgefles,  fo 
that  the  other  capital  burgeflTes  fo  to  be  chofen,  together 
with  the  mayor  and  the  other  eleven  capital  burgefles,  fliould 
not  exceed  the  number  of  Jixteen ;  that  as  often  as  the 
capital  burgefles,  fo  to  be  nominated^  or  thereafter  to  be   . 
chofen,  that  is,  the  eleven  and  four,  or  any  of  them,  fliould 
die  or  be  removed,  then  it  flaould  be  lawful  to  the  other 

F  3  capital 


70  THE    LAW 

capital  burgiffis^  being  the  common  council^  or  the  greater 
part  of  them,  to  choofe  one  or  more  of  the  other  burgefies> 
in  the  place  or  places  of  fuch  capital  burgefs  or  burgefles  h 
happening  to  die,  or  to  be  removed ;  and  that  he  or  they 
fo  chofen,  fhould  be  a  capital  burgefs  or  capital  burgeflies, 
in  like  manner  as  the  capital  burgeiTesby  the  letters  patent 
before  conftituted  were  or  fhould  be:  that  whenever  a 
vacancy  or  vacancies  fhould  happen  by  the  death  or  re- 
moval of  any  of  the  faid  capital  burgeil'es,  another  or  others 
of  the  burgeiTes  fhould  be  elected  a  capital  burgefs  or  capi- 
tal burgefles  by  the  reji  of  the  council^  or  the  greater  part  of 
them,  in  the  place  of  fuch  capital  burgefTes  fo  happening 
to  die  or  to  be  removed. — That  by  the  faid  letters  patent, 
the  Queen  granted  to  the  mayor  and  capital  burgefTes,  and 
their  fucceflbrs,  that  it  fhould  be  lawful  for  them  to  keep 
or  appoint  a  guild,  or  council-houfe  within  the  borough, 
commonly  called  the  Moothall,  and  that  thejaii  mayor  and 
capital  burgejfesy  the  common  council  of  the  borough  or  town 
aforefaid^  or  the  greater  part  of  them  for  the  time  being,  as 
often  as  to  them  it  fhould  feem  necefTary,  fhould  and  might 
convoke,  and  hold  in  the  faid  houfe,  a  certain  convocation 
of  the  fame  mayor  and  capital  burgeffes,  or  the  greater 
part  of  them,  and  in  the  fame  convocation  fhould  and 
might  treat,  &c.  ^f  the  flatutes,  ads,  articles,  and  ordi- 
nances touching  the  borough  or  town,  and  the  good  rule, 
flate,  and  government  thereof,  according  to  the  tenor  of 
the  faid  letters  patent. — That  the  profecutor  was  eleded  a 
capital  burgefs  on  the   27th  of  Augufl,  1759,  and  fworn 
into  the  office  on  the  fame  day ;  that  on  the  loth  of  Augufl, 
17785  the  mayor  duly  appointed  a  meeting  or  convocation 

'  of  the  mayor  and  capital  burgefTes,  to  be  holden  at  the 
council-chamber  within  the  Moothall  or  guildhall,  on  the 
15th  of  Auguft,  at  eleven  o'clock  in  the  forenoon,  to  eleft 

one 


or     CORPORATIONS.  71 

one  of  the  burgefles  into  the  office  of  a  capital  burgefs,  in 
the  room  of  Henry  Fane,  deceafed;  that  before  the  15  th 
of  Augufty  he  caufed  due  notice  to  be  given  to  all  diecapi* 
tal  burgefieS)  within  the  reach  of  fummons,  of  his  having 
appointed  fuch  meeting,  and  caufed  fueh  due  notice  to  be 
given,  on  the  nth  of  Auguft,  to  the  profecutor  in  perfon, 
by  which  he  fummoned  him  to  attend  at  the  council-cham* 
ber  within  the  Moothall,  at  the  faid  meeting ;  that  on  the 
I  jth  of  Auguft,  the  mayor  and  two  of  the  capital  burgefles 
met  at  the  council-chamber,  for  the  purpofe  of  holding  a 
meeting  of  the  mayor  and  capital  burgefles,  according  to 
the  notice,  for  the  eleftion  of  a  capital  burgefs  in  the  room 
of  the  faid  Henry  Fane,  deceafed;  but  that  they  not  being 
a  fufficient  number  for  that  purpofe,  andbecaufe  a  fufficient 
number  did  not  then  and  there  appear  to  hold  fuch  meeting* 
none  could  be,  or  was  then  held,  and  that  the  profecutor 
did  not  attend  or  appear  at  the  hour  of  eleven,  nor  at  any 
time  on  that  day,  according  to  the  appointment  and  notice, 
but  contriving  and  defigning  wilfully  to  prevent  the  mayor 
and  capital  burgefles  from  holding  fuch  meeting  for  the 
purpofe  aforefaid,  did  wilfully  abfent  himfelf  from  the  coun* 
cil-chamber  during  the  whole  day,  and  did,  on  the  faid  day 
mentioned,  combine  with  the  Honourable  Henry  Fane,  and 
fix  others,  by  name,  being  or  claiming  to  be  capital  bur- 
geflles,  and  having  alfo  before  received  notice  of  the  faid 
meeting  (<?),  to  prevent  fuch  meeting  from  being  held, 
and  that  in  profecution  of  fuch  combination,  they  wilfully 
abfented  themfelves  from  the  council-chamber  during  the 
whole  of  the  faid  15th  of  Auguft;  and  that  by  reafon  of 
the  abfence  of  the  profecutor  and  of  a  number  of  other  ca- 
pital burgefles  fufficient  to  proceed*  to  the  eleAion,  no 
meeting  for  the  faid  purpofe  could  be  or  was  held  on  the 
15  th  of  Auguft,  according  to  the  appointment  and  notice* 

(d)  There  was  no  alltgation  that  they  had  been  fummoned, 

F  4  The 


7^  THE    LAW 

The  return  then  ftated,  that  the  mayor,  onthefaid  15  th  of 
Auguft,  duly  appointed  another  meeting  to  be  held  at  the 
council-chamber  on  the  2rft  of  Auguft,  for  the  fame  pur-» 
pofe,  and  repeated  the  fame  allegations,  with  regard  to, 
this  meeting,  as  had  been  made  with  refpeft  to  the  former, 
except  the  charge  of  combination :  and  then  ftated,  that 
the  profecutor,  by  his  fo  wilfully  abfenting  himfelf  from 
the  faid  fevcral  meetings  (o  appointed  for  the  15th  and  21B: 
of  Auguft,  and  by  his  faid  combination,  did  wilfully  negleft 
and  violate  the  duty  and  execution  of  his  office.— It  then 
ftated  the  proceedings  adopted  for  the  removal,  and  the 
confequent  removal  of  the  profecutor  for  thefe  offences. 

Lord  Mansfield  faid  he  had  doubted  for  fome  time  on 
the  tjueftion,  whether,  in  the  prefent  cafe,  it  was  fuffici- 
ently  fhewn  in  the  return,  that  Raymond  was  of  the  com- 
mon council,  in  whom  it  was  alleged  the  right  of  eleftion 
was  vefted,  and  of  which  he  muft  neceflarily  be,  before 
he  could  be  guilty  of  the  offence  for  which  he  was  ftated  to  ~ 
have  been  amoved  :  there  were  three  parts  of  the  charter 
which  tended  to  fliew,  that  the  council  confifted  of  all  the 
capital  burgeffes,  and  that  the  expreffions,  "  common 
council,'*  and  "capital  burgefles,"  were  fynonimous. 
Firft,  "Capital  burgeffes,  being  the  common  council," 
and  not  "  being  ^the  common  council."  Secondly,  If  a 
capital  burgefs  die,  or  is  removed,  a  new  one  is  to  be 
chofen  "by  the  reft  of  the  council,  or  the  greater  part  of 
them."  Thirdly,  The  paffage  mentioned  relative  to  the 
meeting  or  convocation.  But  ftill  all  thofe  paffages  and 
expreffions  were  ambiguous  j  they  afforded  a  ftrong  in- 
ference in  point  of  language :  byt  were  they  fufficient  in 
this  charter  to  conftitute  a  common  council  compofed  of 
all  the  capital  burgeffes?  He  thought  not,  becaufe  the 
charter  referred  to  a  previous  known  conftitution:  the 

council 


OF    CORPORATIONS.  ^j 

council  iilight  have  been  created  by.  prefcription,  or  a 
foririer  charter  to  which  this  charter  referred ;  and  if  this 
was  the  cafe,  the  conftitution  of  the  council,  by  fuch 
prefer!  ptipn  or  previous  charter,  (hould  have  been  fet 
forth  (a). 

Non-residence  within  a  borough  cannot  be  afuffi- 
cient  caufe  to  disfranchife  a  freeman ;  becaufe  he  has  bis 
freedom  for  his  own  benefit,  and  his  refidence  is  of  tittle 
confequence  to  the  oorporatlon  at  large. 

But  a /(7/^/ defertion  of  the  borough,  by  an  alderman 
with  his  family,  is  a  good  caufe  to  remove  him  from  the 
office,  becaufe  he  is  thereby  rendered  incapable  of  doing 
his  duty  to  the  corporation  (^),  but  it  is  «ot  a  caufe  to 
disfranchife  him,  becaufe,  thAugh  he  ceafe  to  be  an  alder- 
itian,  he  may  ftill  continue  a  freeman.  Nor  is  it  every 
temporary  abfence,  that  will  be  good  caufe  for  removing  an 
alderman;  he  may  have  fome  reafonable  caufe  of  abfence, 
as  ficknefs,  or  going  to  the  Bath  for  the  recovery  of  his 
health,  or  being  employed  in  the  fervice  of  the  King :  he 
may  leave  a  fervant  in  the  houfe,  which  is  a  proof  of  his 
intention  to  return,  and  makes  him  virtually  an  inhabitant ; 
and  if  he  return  before  his  adlual  amotion,  that  may  cure 
the  defeft  pf  his  abfence,  however  long  continued.  It  has 
been  held,  that  it  was  not  a  good  caufe  to  remove  an  alder- 
man, that  he  had  left  the  borough  for  four  months  with  his 
whole  family  {c) ;    and,  in  general,  wherever  non-refidencc 

(a)  Rex  V.  mayor  and  burgefles  of  Lyme  Regis,  on  the  profecution 
of  Arthur  Raymond,  Doug.  177,  (169). 

(b)  City  of  Exeter  V.  Glide,  4  Mod,  36.  1  Sh.  ^fS,  364,  cafe  of 
Fetheiftonhaugh  in  Rex  v.  mayor  of  Newcaftle  upon  Tync,  cited 
J  Bur.  530,  Doug.  157,  (152;.  Rex  V.  Tnicbody.  sLd.Raym.  1175. 
Rex  V.  Lyme  Regis,  Doug.  149,  (144). 

j^c)  Rex  V.  mayor  of  Leicefter,  4  Bur.  ao87. 

is 


74  T  H  E     L  A  W 

is'  affigned  as  a  caufe  for  the  removal  of  an  alderman,  or 
officer  of  fimilar  denomination,  it  muft  appear  that  refi- 
dence  is  required  by  the  conftitution  of  the  corporation, 
or  that  the  bufinefs  of  the  corporation  has  been  obftriK^ed 
by  the  non-reiidence  of  the  party  removed. 

A  MANDAMUS  having  been  awarded  againft  the  mayor 
and  burgeflfes  of  Lyme  Regis,  commanding  them  to  reftore 
Francis  Fane  to  the  office  of  capital  burgefs,  they  returned 
to  the  fame  efFedi  as  in  the  cafe  of  Arthur  Raymond,  fo 
far  as  related  to  the  original  conftitution  of  the  borough  by 
prcfcription,  and  by  the  charter  of  Queen  Elizabeth  j  and 
befides,  "  That  till  the  letters  patent,  every  counfellor^  and 
finccy  every  capital  burgefsj  was  accuftomed  to  refideand 
inhabit,  and  of  right  ought  to  refide  and  inhabit  within  the 
borough,  or  the  liberties  thereof,  to  advife  and  affift  the 
mayor,  touching  the  ftate,  good  rule,  and  government  of  " 
the  borough,  and  the  adminiftration  of  juftice  within  the 
fame;  that  ever  Jince  the  Utters  patent^  the  council  had con^ 
fiftedj  and  of  right  ought  to  conjifty  of  the  mayor  and  the  capi^ 
talburgejfes  of  the  borough  for  the  titne  being ;  that  Fane,  on 
the  29thof  Auguft,  1774,  was  elected  a  capital  burgefs, 
and  afterwards,  on  the  fame  day,  took  the  oath  ufually 
taken  by  a  capital  burgefs  on  his  admiffion  :  that  he  had 
not,  at  any  time  fince  his  elefKon,  inhabited  or  refided 
within  the  borough,  or  the  liberties  thereof,  but  on  the 
contrary  had  ever  fmce  inhabited  and  refided,  with  his  fa- 
mily, in  places  out  of,  and  at  a  great  diftance  from  the  (aid 
borough,  and  the  liberties  thereof,  and  had  during  all  that 
time  voluntarily y  without  good^cafton^  ablented  himfelf  from 
the  borough,  and  from  the  duty  of  the  office  of  a  capital 
burgefs;  and  that  by  his  non-refidence,  and  his  volun- 
tary abfence  from  the  borough,  and  the  duty  of  his  office, 
he  did,  during  all  the  time  of  his  being  a  capital  burgefs, 

wilfully 


OF    CORPORATIONS.  7^ 

wilfully  negle£l:  and  omit  t^e  duty  and  executkm  ef  Us 
oj9ice,  and  deprive  the  mayor  and  burge&s  of  that  comiGil 
and  affiftance  and  advice,  which  by  the  duty  of  his  officfe^ 
and  ^pcording  to  bis  oath,  ]»e  ought  to  h^ve  giycn,"  ■  ■* 
The  return  then  ftated  the  proceedijo^gs  relative  to  his  re- 
moval. 

At  firft  the  court  pronounced  judgmt^t  in  &Your  of 
the  return;  but  it  being  afterwards  fuggefted,  that  the  ob- 
jection taken  in  the  cafe  of  Raymond  applied  likewife  to 
this,  the~  matter  was  poftponed  till  the  opinion  of  the  court 
fhould  be  taken  on  that  objection  (a) ;  and,  immediately 
after  that  opinion  was  given,  a  motion  was  made  to  quafli 
the  return  in  the  prefent  cafe.  It  was  ftated,  on  the  part  of 
the  profecution,  that  by  the  returns  in  thofe  cafes  when  die 
disfranchifement  had  been  for  non-refidence,  the  prefcriptivi 
neceffity  of  refidence  applied  only  to  die  councilj  and  as  it 
was  not  directly  averred  that  the  prof^cutor  was  of  the 
council,  the  non-refidence  might  be  no  offence  in  him.-— 
Lord  Mansfield  faid,  the  objedion  was  irrefragable,  and 
diat  the  averment,  **  that,  fince  the  charter,  the  council 
had  confifled  of  the  mayor  and  capital,  burgefles,"  was  not 
fufficient,  as  it  did  not  appear  that  all  the  fix  teen  came  to 
be  of  the  council,  which,  before  the  charter,  was  ftated  to 
confift  onl  y  of  eleven  ( i ) . 

Wherever  non-refidence  is  a  caufe  of  amodon,  it  does 
not  render  the  office  ipfofa£io  void,  but  only  voidable;  and 
there  muft  be  an  a£tual  amotion  before  any  proceedings 
can  be  had  againft  the  party  for  an  ufurpation  {c)* 

(a)  Rex  v.  mayor  and  burgefles  of  Lyme  Regis^  on  tfieprofecatioD 
of  Francis  Fane>  Doug.  149,  (144). 

(b)  Doug*  1829  (174)  in  the  noteis. 

(f )  Vaughan  v.  Lewis,  Carth.  %zi*  Rex  v.  Ponfonby,  Saycr  *4S» 
5  Brown,  P,  C.  287,    Rex  v,  Heaven,  %  Term.  Rep.  77a, 

It 


^6  THE     LAW 

It  is  no  caufe  of  removal,  that  a  corporator  has  ufed 
opprobrious  or  indecent  language  to  the  mayor,  or  other 
principal  m^giftrates  of  the  corporation,  as  if  he  call  the 
mayor  a  knave,  or  fay,  that  he  has  done  that  in  the  execu- 
tion of  his  office,  which  he  cannot  anfwer  (a)  i  though  the 
words  be  in  confequence  of  an  admonition  from  the  mayor, 
for  a  malicious  a<S^  to  another  burgefs ;  as  where  a  burgefs 
"being  church-warden  prefented  one  of  the  burgeffes  ma- 
licioufly,  without  caufe,  for  being  abfcnt  from  the  peram- 
bulation 3  for  which  being  rebuked  by  the  mayor,  he  faid 
contemptuoufly,  /  care  not  for  Mr*  Mayor^  nor  for  any  of  the 
burgeffes  {b)  :  nor  does  it  feem  a  good  caufe  of  amotion 
that  a  man  has  written  a  libel  on  the  mayor,  or  on  another 
member  of  the  corporation  {c)  ;  it  may,  in  fome  of  thefe 
cafes,  be  proper  to  commit  the  offender  till  he  find  fureties 
for  his. good  behaviour;  or  fome  of  the  offences  may  be  a 
foundation  for  an  adlion  at  the  fuit  of  the  party  injured; 
but  they  can  be  no  caufe  of  disfranchifement ;  fo,  neither 
can  it  be  a  good  caufe  of  disfranchifement  or  amotion,  ^that 
the  condu<3:  of  the  party  is  troublefome  or  difpleafmg  to 
the  body  at  large  (d). 

So,  a  cujiom  to  disfranchife  for  contemptuous  words 
is  void(^},  even  in  the  city  of  London,  whofe  cuftoms^ 
are  confirmed  by  aft  of  parliament,  for  that  confirmation 
cannot    extend    to    unreafonable    cuftoms,    which    this 
clearly  is  (/). 

(^z)  James  Bagg^s  cafe,  ii  Co.  96,  97,  98, 99. 
(J))  Clerk's  cafe,  2  Cro.  506. 
(r)  Pr.  Holt  C.  J.  Fortes,  275,  476. 
(^)  Vid.  Bagg^s  cafe,  11  Co,  96,  &c, 
(^)  2  Salk.  426.    2  Ld.  Raym.  777. 

(/)  Clark's  cafe,  i  Ventr.  327.     Vid,  i  Ventr.  30a,  a  di^lum  of 
Twifden  to  the  contrary. 

In 


pT     CORPORATIONS.  77 

Ik  the  cafe  of  Sir  Thomas  Earle,  alderman  of  Briftol,^  the 
fdlowing  circiunftances  have  been  adjudged  to  be  no  good 
caufe  of  removal. 

First,  "  That  difregarding  his  oath  taken  on  his  ad- 
miffion  into  the  common  council,  and  deflgning  to  draw  Sir 
Richard  Hart,  then  mayor,  and  other  good  citizens,  into  the 
difpleafure  of  the  King  and  Queen  (a)^  he  compofed  and 
wrote  a  certain  letter  to  the  Earl  of  Shrewfbury,  then 
fccretary  of  ftate,  in  which,  among  other  falfehoods  and 
calumnies  charged  on  the  faid  mayor,  the  faid  Thomas 
Earle  charged  him  with  fuborning  a  i^^^^^^  fellow  to 
fwear  any  t^ing  which  he  fhould  be  inftru^led,  and  fug- 
gefting,  that  thereby  the  faid  fecretary  of  date  would  have 
great  trouble  while  Hart  continued  mayor,  and  that  thoie 
citizens,  who  were  of  the  mayor's  party,  were  zealous 
Jacobites,  and  that  the  faid  mayor  intended  to  baffle  the 
next  elediion  for  members  of  parliament  5  when,  in  truth,  the 
laid  Sir  Richard  Hart  was  a  true  and  faithful  fubjed):  of  the 
King  and  Queen,  and  never  guilty  of  any  fubornation." 

Secondly,  '*  That  the  faid  Thomas  Earle,  on  fuch  % 
day,  when  the  mayor  and  aldermen  were  in  the  Tholfey 
court,  indifcharge  of  their  office,  riotou/Iyy  and  with  ftrong 
hand,  with  a  great  number  of  men,  entered,  and  infolently 
threatened  the  faid  mayor  and  aldermen  for  bailing  one 
Francis  Moore,  who  was  committed  for  feditious  wo/'ds  ; 
and  that  the  clamour  and  riot  were  fo  great,  that  the  mayor 
and  aldermen  then  prefent  were  in  fear  of  their  lives,  and 
thereby  forced  to  remand  the  faid  Francis  Moore  to  the 
gaol  after  they  had  bailed  him,  when,  in  truth,  the  faid 
Francis  was  bailable  by  law." 

ThirdlV,  "  That  the  faid  Thomas  Earle,  and  others 
of  the  common  council,  on  fiich  a  day,  in  their  military  ca- 

(a)  This  was  in  the  rdgn  of  WllUam  and  Mary. 

pacity, 


7?  THE    LAW 

pacity,  as  deputy  lieutenants,  required  the  common  coun* 
cil  book  to  be  carried  before  the  Earl  of  Macclesfield,  lord 
lieutenant  of  the  faid  city,  with  an  intention  to  make  an  ac- 
cuiation  againft  the  faid  Hart,  then  mayor,  to  betray  the 
fecrets  of  the  city,  to  reflect  on  the  government  of  it,  and 
draw  in  queftion  the  proceedings  of  the  mayor  and  coun- 
cil, before  a  perfon  who  had  no  conufance  of  the  matter, 
^ain/i  the  duties  of  his  office^  and  againft  his  Sttb.** 

To  the  firft  of  thefe  caufes  it  was  objected,  that  the 
matter  contained  in  it  was  no  ground  for  a  disfranchife- 
ment,  or,  iflNitas,  that  it  was  not  fufficiendy  alleged; 
for  it  Was  only  faid,  that  Earle  wrote  fuch  a  letter,  but  not 
that  it  was  ever  fent  abroad  or  publifhed ;  and  that  the 
writing  alone,  without  publication,  was  no  fcandaK— «It 
might  have  been  added,  that  if  the  letter  had  been  really 
publifhed,  the  proper  remedy  was  to  profecute  for  a 
libel. 

The  fecond  caufe,  it  was  faid,  was  altogher  uncertain ; 
for  it  was  only  alleged  in  general  terms  that  he  threatened 
the  mayor  and  aldermen,  and  it  did  not  appear  by  the  re- 
turn, that  there  were  any  aldermen  in  Briftol,  or  that  he 
ufed  any  particular  a£l  of  violence ;  and  that  the  confequence 
was  trivial,  namely,  that  a  feditious  fellow,  bailable  as  was 
pretended,  was  remanded  to  gaol. 

The  third  caufe  was  ftill  more  frivolous ;  for  nothing 
more  was  pretended,  than  that  a  requeft  was  made  by  Earle 
that  the  common  council  book  might  be  carried  before  the 
Lord  Lieutenant,  with  an  intention^  is^c»  which  requeft 
i^as  never  granted ;  and  that  all  the  matter  which  followed 
the  words,  "with  an  intention,"  amounted  to  nothing 
more  than  an  inuendo,  which  was  nothing  to  th6  pur- 
pofe  (a}% 

ia)  Carth.  173—176. 

The 


OF    CORPORATIONS.  ^a 

The  power  of  conferring  degrees,  and  of  degrading,  in 
die  univerfities,  is  in  the  vice-chancellor,  mafters,  and 
fcholars,  ailembled  in  a  body ;  but  thejr  cannot  degrade 
without  reafonablecaufe :  and  it  was  decided  in  the  cafe  of 
Dr.  Bentley  (/?),  that  a  co'htempt  to  the  vice-chancellor^ 
as  a  judge,  was  not  a  fu£Sicient  caufe  to  degrade. 

Thb  Dodlor  was  head  of  a  college  in  Cambridge,  and 
was  fumtnohdff  to  the  vice-chancellor's  court  to  aofwer 
Dr.  Middleton,  in  a  plaint  levied  ag^nft  him  there ;  the 
do£tor  took  the  fummons  from  the  beadle,  and  contempt 
tuoufly  faid,  >^  the  vice-chancellor  a£ted  foolifhly;  that  he 
was  not  his  judge;  that  he  would  not  obey  him ;  and  that 
the  procefs  was  illegal."^ — The  vice-chancellor  yi^/;9^^^/ 
him  as  for  a  contempt,  and  afterwards,  on  a  grace  propofed 
to  a  congregation  of  dodors  and  heads  of  hoiifes  by  the 
vice-chancellor,  the  dodor  was  degraded:  on  his  ap-* 
plication  to  the  court  of  King's  Bench,  for  a  mandamus  to 
be  reftored>  the  court  £iid,  that  though  the  condud:  of 
Doctor  Bentley  was  highly  Uameable,  and  that,  if  he  had 
fo  treated  the  procefs  of  that  court,  they  would  have 
puniflied  him  feverely ;  yet,  that  the  vice  chancellor  had . 
gone  beyond  his  authority  in  fufpending  him,  and  that  the 
congregation,  though  they  had  authority  to  fufpend  or  de- 
grade for  any  reafonable  caufe,  and  though,  perhaps^  a  con- 
tempt to  them  might  have  been  conlidered  as  a  reafonable 
caufe;  yet  a  contempt  to  the  vice-chancellor's  court  was 
not  a  contempt  to  the  univerfity,  and  the  congregation 
had  exceeded  their  authority. 

If  a  man  threaten,  or  endeavour  either  by  himfelf  or  in 
combination  with  others,  to  do  a  thing  againfl  the  trufl  of 
his  freedom,  and  to  the  prejudice  of  the  public  godd  of  the 
city  or  borough,  but  do  not  put  it  in  execution ;   as  if  he 

M  t  Mod*  10^    Fortdct  ftO».    t  Ld.  Rtym»  X334^'  ^^*  557* 

threaten 


80  THE    LAW 

ff 

threaten  the'ruin  of  their  charter  or  privileges,  or  difluacfe 
the  payment  of  cuftoms  due;  this  may  be  a  good  caufe  to 
puniih  him  as  before  mentioned,  but  not  to  disfranchife 
him;  "  becaufe,"  fays  Lord  Coke,  "a  freeman  of  a  city 
or  borough,  has  a  freehold  in  his  freedom  for  life,  and,  with 
others  in  their  politic  capacity,  has  an  inheritance  in  the 
lands  of  the  corporation,  and  an  intereft  in  their  goods ;  and 
probably  his  trade  or  means  of  living  with  his  <:redit  and 
eftimation  may  be  concerned;  and  it  would  be  againft  the 
public  intereft  if  for  a  mere  menace  or  endeavour  of  which 
he  might  repent,  before  the  execution,  and  from  which  no 
prejudice  enfues,  he  fhould,  by  being  disfranchifed  be  fub- 
jeft  to  fp  much  lofs  (a). 

Misconduct  in  one  corporate  oiEce  Is  not  a  caufe  to 
amove  the  offender  from  another',  thus  if  a  capital  burgefs 
be  appointed  chamberlain  of  the  corporation,  and  mifcon- 
du£t  himfelf  in  ihat  ofEee,  this  is  not  a  good  caufe  to  de- 
prive him  of  the  office  of  capital  burgefs  (b). 

So,  where  a  recorder  is  alfo  a  juftice  of  peace,  and  a  voter 
for  a  member  of  parliament,  mifconduft  in  either  or  both  of 
the  two  latter  charadlers,  is  not  a  good  caufe  to  remove 
him  from  his  office  of  recorder. 

Serjeant  Burland  being  recorder  of  Wells,  and  alfo  a 
juftice  of  peace,  and  a  voter  for  a  member  of  parliament, 
went  down  from  London  to  vote  at  an  eleftion:  Mr. 
Tudway  was  mayor,  and  Mr.  Keate  the  fenior  alderman ; 
the fheriiF delivered  the  precept  to  the  latter;  the  former 
demanded  it,  and  the  latter  refufed  to  deliver  it :  Tudway 
then  ordered  the  ferjeant,  as  recorder^  to  adminifter  the  oath 
to  him  as  returning  officer,  and  not  to  Keate :  the  ferjeant 
faid  he  would  di/oiey  that  order,  and,  on  his  own  motion 

(a)  II  Co.  98  b. 

(b)  Roc  v»  m^yor,  f(c«  cf  Donc^ftcr,  %  lA,  Raym.  1564. 

and 


OF    CORPORATIONS. 


8l 


and  propofal,  as  was  alleged,  adminiftered  th6  oath  to 
Keate,  as  well  as  to  the  mayor :  the  mayor  upon  this  ad- 
journed the  poll  to  the  affizc  hall;  the  ferjeant  oppofed 
the  adjournment;  and.advifed  and  aflifted  to  continue  itf 
where  it  was.  In  confequence  of  which,  two  diftinil  polls 
were  takep.  For  this,  as  well  as  for  another  caufe,  the 
corporation  removed  the  ferjeant  from  the  office  of  re- 
corder.^ 

Lor  EL  Mansfield  obferved,  on  this  cafe,  that  the  charge 
of  miibehaviour  at  the  elediion  was  the  adminifterfng  the 
oath  both  to  Keate  and  the  mayor ;  though  the  mayor 
commanded  the  ferjeant  to  adminifter  it  only  to.himfelf: 
that  the  mayor  having  adjourned  the  poll,  the  ferjeant  de- 
clared his  epinion  ^^  that  the  mayor  could  not  adjourn 
without  the  confent  of  the  candidates ;"  and  that  he  con- 
tinued with  Keate,  taking  the  poll  at  the  former  place. 
There  was  no  charge  at  all  of  any  corrupt  motive  for  his 
giving  this  advice,  or  doubting  of  the  legality  of  the 
mayor's  prefiding;  it  was  plain,  that  his  opinion  was  fin- 
cere,  becaufe  the  candidate,  whofe  caufe  he  efpoufed,  rifqued 
the  fate  of  his  eledlion  upon  it ;  and  thofe  who  voted  for 
that  candidate,  did  not  vote  before  the  mayor  and  Keate 
both,  but  only  polled  before  Keate.  The  ferjeant  had  no- 
thing to  do  at  that  meeting  as  recorder;  rior  was  this  a  cor^ 
porate  meetings  The  mayor  had  the  return,  and  might  have 
made  it  without  the  recorder.  But,  as  recorder,  the  fer- 
jeant was  a  juftice  of  peace.  Had  he  then  mifbehaved  as 
a  juftice  of  peace?  Two  perfons  claimed  the  return  ;  and 
both  demanded  to  have  the  oath  adminiftered :  he  admini- 
ftered  it  to  both.  This  was  furely  no  breach  of  the  duty 
of  his  office.  The  mayor  adjourned  the  poll.  The  fer- 
jeant had  nothing  to  do  with  the  adjournment,  but  as  a 
voter :  he  gave  his  opinion :  his  opinion  was  wrong :  they 

Vol.  II.  G  who 


82  THB     LAW 

who  were  his  friends  fuffbred  by  rt.    This  ccwld  be  no 
breach  of  his  corporate  duty  (a). 

Gross  ignorance  of  the  law  is  a  good  cauie  to  remove 
a  recorder^  becaufe  it  is  his  principal  bufinefs  to  adviie  th« 
corporation  in  matters  of  law  {b) :  but  it  is  no  caufc  tore- 
move  him  that  he  wasjniftaken  in  a  Angle  inftance,  or  that 
he  refufes  to  give  a  pajkive  opinion»  or  to  advife  z  particular 
part  of  the  corporation,  for  his  duty  is  only  to  advife  the 
whole  body,  and  in  a  reafonable  mamier  [c)* 

So,  a  gerural  negleft,  or  refufal  to  attend  the  duty  of  fuch 
an  office,  is  a  reafon  of  forfeiture  (i). 

In  the  caf?  of  Serjeant  Whitaker,  recorder  rf  Ipfwich, 
it  appeared,  that  the  ferjeant,  the  bailiffs,  and  oae  of  tb« 
jufticcs  elected  out  of  the  portmen,  on  the  6th'  of  January^ 
I70Z,  ^^  appointed  that  they  would  hold"  {i\  a  feffion  of 
the  peace  for  the  borough,  in  the  Motehall  there}  on  the 
14th  of  January  following,  at  two  in  the  ai^rnoon :  ths^  a 
precept  was  ifTued  oUt  by  the  fame  perfoi^  accordingly  the 
fame  day  to  the  ferjeants  at  mace,  to  return  a  grand  jury^ 
and  futnmon  all  officers  whofe  attendance  was  neceflaryi 
and  to  proclaim  the  feflion ;  that  the  feffion  was  prodaimed 
accordingly,  by  the  crier;  that  Serjeant  Whitakcr  had  no- 
tice of  all  the  premifes ;  and  that  the  bailiffs  and  the  other 
juftice,  the  jury  and  all  other  perfons  neceilary  to  the  hold- 
ing of  a  feffion,  except  the  ferjeant,  affembled  at  the  day 
and  place  appointed,  and  there  remained  feveral  hours,  and 
were  ready  to  have  held  a  feffion  of  the  peace  for  the 
borough,  if  the  ferjeant  had  been  prefent ;   but  that  the 
ferjeant  did  not  come  at  the  hour  appointed,  nor  all  the 
afternoon,  to  the  place  appointed,    '^  although  folemnly 

i^a)  Rex  V.  corporation  of  Wells,  4  Bur.  1999. 

(^)  Lord  Haw  ley's  cafe,  I  Ventn  143. 

(r)  2  Ld.  Raym..  1238.  {/)  Pr.  Ld.  Mansfield,  4  Bur.  204« 

{e)  Arpuo^abantquodillitetterent. 

demanded" 


OF    CORPORA  TIONS,  S3 

4emBLnAeA"  {a)y  but  voluntarily,  and  without  any  reafon- 
aUe  caufe,  abfented  himfdf,  fo  that  by  reafon  of  his  abfence 
Ac  feflion  couW  not  be  held  according  to  the  appointment 
and  notice,  **  to  the  great  detriment,''  as  it  was  alleged, 
**oftbc  bailiffs,  burgefles,  and  commonalty,  and  againft 
ihe  duty  of  the  ferjeant's  office:^'  ind  that  for  this,  and  a 
fion-attendance  under  fimilar  circumftances  on  a  fubfequent 
day,  among  odier  caufes,  the  ferjeant  was  removed  fro^n 
his  office. 

To  this  It  was  objeSed,  that  a  feifion  of  the  peace  might 
be  held  without  the  recorder,  as  two  juftices  might  hold 
the  feffion,  and  it  did  not  appear  that  the  recorder  was  of 
fhe  quorum ;  and  further,  admitting  that  the  feffion  could 
not  be  hdd  without  him,  yet  they  ought  to  have  fent  for 
tiiflfi,  and  (hewn  fbme  y^mi?/  damage  to  the  corporation 
from  the  feffion  not  having  been  held :  but  it  was  anfwered 
-and  reiblved  by  the  court,  firft,  "  that  admitting  the  pre- 
(enoe  of  the  recorder  not  to  be  neceffary  by  the  charter  to 
the  holding  of  a  feffion  of  the  peace,  yet  he  muft  attend, 
becau&  it  was  the  intent  of  the  charter  in  creating  fuch  an 
o.ficer,  that  he  ihould  aififl  the  juiHces  in  matters  of  law  j 
and  At  latter,  though  they  had  power,  might  be  afraid  to 
proceed  to  h<dd  a  fefiion  without  their  recorder :  and 
fecondly,  that  this  being  a  public  office,^  conterning  the 
adminiftration  of  juftice,  the  officer  was  bound  to  attend 
at  his  peril,  and  non-attendance  was  a  caufe  of  forfeiture, 
though  no  inconvenience  enfuedfrom  it'^  {b). 

In  the  cafe  of  Serjeant  Burland,  recorder  of  Wells  {c\ 

it  appeared  that  the  ferjeant's  general  relidence  was  in  Lon- 

^  don,  and  had  been  fo  for  fix  or  feven  years,  that  he  went 

down  to  Wells,  on  occafion  of  an  eleftion,in  December  1 765  j 

[a)  Licet  folemnlter  exa6his. 

{b)  Kegina  v.  BallivoS^  &c.  de  Gippo.     a  Ld-vRaym.  1*33,  1237, 
vid.  v«l.  I,  3*6,  447.        ^  (f)  Ante,  p.  So,  8x. 

G  2  that 


84  T  H  B    L  A  W 

that  while  he  was  in  the  town,  he  had  notice  to  attend  at  a 
feffion  to  belield  qn  the  13th  of  January,  1766,  and  that, 
in  fa£l«  he  did  not  attend ;  but  that  the  reafon  of  his  non- 
attendance,  at  that  time,  was,  that  he  had  received  notice 
that  no  feffion  could  be  held  on  that  day,  on  account  of  the 
illnefs  oif  Mr.  Miller,  another  juftice,  without  whofe  pre- 
fcnc^  the  feffion  could  not  be  held,  as  the  mayor  was  gone 
to  London;  that  notwithftanding  this,  he  had  remained  in 
the  town  for  the  purpofe  of  attending  the  feffion,  fliould  Mr. 
Miller  recover  in'time ;  but  that  not  having  been  the  cafe, 
he  had  not,  in'fa£l,  attended,  as  his  attendance  would  have 
been  nugatory. 

It  lyas  made  a  further  fubje<9:  of  complaint  againft  the 
ferjeant,  that  he  had  negleSfed  to  attend  at  the  next  quarter 
feffion,  OB  the  7th  of  April,  though  it  was  not  pretended  that 
he  had  any  particular  perfonal  notice  to  attend,  but  it  was 
cofn tended,  that  he  was  bound  by  his  duty  to  attend,  as  the 
7th  of  April  was  well  afcertained  to  be  the  ufual  day  of 
holding  this  feffion : — in  ai^fwer  to  this  charge,  he  alleged, 
that  he  was  not  at  that  time  in  the  town,  and  that,  as  there 
was  a  fufficient  number  of  juftices  without  him,  and  their 
jurifdi£tion  did  not  extend  to  felonies,  and  as,  on  ordinary 
occafiens,  no  particular  bufmefs  was  expeded  to  come  be- 
fore them,  his  prefen'ce  was  not  effentially  neceflary. 

Lord  Mansfield,  after  flating  the  principal  circum^^ 
fiances  of  this  cafe,  delivered  the  opinion  of  the  court  to  this 
elFecSt :  that  though  a  gtnetal  negled,  or  refufal  to  attend  the 
duty  of  fuch  an  office,  where  the  negledl  was  determined^ 
and  the  refufal  wilful,  was  a  reafon  of  forfeiture  i  yet  a  fingle 
inflance  of  non-attendance,  where  no  particular  bufmefs 
was  expeded,  and  where  none,  in  fa6t,  occurred,  was  a 
vefy  different  cafe;  that  he  thought  the  law  was  well  laid 
down  by  Serjeant  Hawkins,  in  treating  of  oflences,  by 

officers, 


OP    CORPORATIONS.  Z^ 

officers,  by  neglefl:  or  breach'  of  duty:    the  ferjeant  faid, 
^'  It  is  certain  that  an  officer  is  liable  to  a  forfeiture  of  his 
office,  not  only  for  doing  a  thing  direfUy  contrary  to  th^ 
'  deiign  of  it;  but  alfo  foxnegledling  to  attend  his  duty  at  all 
ufual,  proper,  and  convenient  times  and  places,  whereby 
any  damage  (hall  accrue  to  thofe,  by  or  for  whom  he  was 
made  an  officer :  and  fome  have  gone  fo  far  as  to  hold,  that 
an  office  concerning  the  adminiftration  of  juftice,  or  the 
commonwealth,    fhall  be   forfeited   for  a  bare  non-ufeVy 
whether  any   fpecial   damage   be   occalioned  thereby  or 
not.    But  this  opinion  doth  not  appear  to  be  warranted  by 
any  refolution  in  point;    and  the  authorities  which  ar^ 
cited  to  maintain  it,  do  not  feem  to  come  up  to  \\}*\d\. 
His  lordihip  then  obferved,    that  Hawkins  ref<prred   to 
feveral  books  and  cafes,  in  his  margin,  and  agreed  with 
thofe  authorities  which  fay,  '*  That  he,  who  fo  far  neglefts 
a  public-  office, .  as  plainly  to  appear  to  take  no  manner  of 
care  of  it,  ihould  rather  be  immediately  difplaced,  than  the 
public  be  in  danger  of  fuffering  that  damage,  which"  can- 
not but  be  expe6^ed  fome  time  or  other  from  his  neg- 
ligence.'! 

'But  nobody*,  continued  his  lordfhip,  *  can  fey,  or 
even  imagine,  that  one  fingle  abfence  from  a  feffion,  at 
which 'nothing  of  importance  was  likely  to  happen,  caa 
amount  X.ofuch  a  negled  of  a  recorder's  office,  as  to  make 
him  plainly  to  appear  to  take  w^fw^ww^r' of  care  of  it'.— 
Then,  alluding  to  the  cafe  of  Serjeant  Whitaker(^),  he 
obferved,  *  that  it  was  perfeftly  confiftent  with  that  cafe  to 
fay,  "  that  barely  being  abfent  was  not  a  caufe  of  for- 
feiture." *  That  cafe,  he  obferved,  arbfe  on  the  amotion 
of  Serjeant  Whitaker,  from  the  bffice  of  recorder  of  Ipf» 

(tf)  Vid.  I  Hawk.  Leach,  p.  310,  c.  66* 
{b)  Ante,  p.      ,  vol.  x,  445— 447> 

G  3  wich, 


86  T  H  £     L  A  W 

wich,  for  non-attendance,  among  other  cau&s,  at  two  dif« 
tin£l  feffions  of  the  peace,  both  appointed  by  bimfelf)  and 
at  a  time  too  when^  as  it  appeared  bythe  return,  he  was 
prefent  within  the  borough*  T  he  corporation  therr  ftated, 
*^  not  a  Jingle  abfence,  but  twa  different  neg}e£b,  at  tw9 

diftindl  feffions." They  ftated,  verbatim,  the  notice 

they  gave  him  to  appear  and  anfwcr,  why  he  did  not  stf« 
tend  and  aflift,  and  that  when  he  appeared  to  anfwer,  all 
the  reafon  he  gave  w^s,  ^^  that  he  cxptSttd  to  be  fent  fipr 
when  they  were  ready ;''  plainly,  therefore,  it  appeared 
that  he  was  in  the  town  -,  and  it  w^  as  (dain  that  he  tof/- 
fuJly  and  voluntarily  negkHed  to  attend  at  the  fefions** 

His  lordihip  then  ftated  the  two  exceptions  taken  to  the  * 
caufe  of  forfeiture,  ib  affigned,  in  not  attendii^  to  hoU  a  , 
feffion  of  the  peace,  and  the  anfwer  and  re((^tion  of  dw 
court  on  tbo&  exceptions ;  and  obferired,  ^^  that  it  was  tis» 
thofe  two  exceptions  only^  that  the  opinion  ofthccovrt 
was  applied  ^   and  that  it  muft  be  underftood  as  qua]i£e<l 
and.  retrained  to  the  fubjcdl  then  in  debate  before  tbemt 
The  qoeflion  was  not,  he  fiiid^  '^  bow  many  inllances  of 
non-attendance  of  a  non-refident  recorder  fliould  anHwnt 
to  a  forfeitures  but  whether  his  mlfvUy  abfenting  himfelf 
when  m  the  town,  was  fo," 

It  was  not  argued,  ^^  whether  his  prefence  wais  neceffarf 
to  the  holding  of  the  feffion,''.  though  it  appeared,  on  the 
return,  that  it  was«     But  it  was  urged,  on  the  part  of 
Serjeant  Whitaker,  ^<  that,  dfknttttfig  it  to  be  (o^  ftt  they 
ought  to  have  fent  for  him ;   and  alfo^  that  they  ought  to 
have  ihewn  fome  ipecial  damage  ta  the  eofpcratioii)  arifnig 
from  not  holding  the  fcficon."      The  corporation  ftid, 
*'  that  no  particular  notice  was  nece&ry  j"  and,  **  that 
being  in  the  town,  he  ought  to  have  attended  this  feifion  of 
his  Qwn  appoiiitment/'    *  There  is  no  doubt,*  continued 

bis 


OFCORPO  RATIONS.  t^ 

his  lordfhip)  ^  that  nonoatcendaoce  is  a  caufe  of  forfeiture  i 
but  the  queftion  is,  ^*  tuhatfiri  of  non-attendance  P'  This 
was  not  the  queftion  in  the  cafe  oi  Ipfwichj  Serjeant 
Whitaker  appointed  the  feAon  bimielfi  was.  actually  then 
upon  the  fpot )  and  xwiuntarify  and  wllfulfy  abfented  him- 
felfi  Being  merely  abfent  on^e  from  a  feffion,  without  any 
particular  circumftance,  is  no  caufe  of  forfeiture.  In  the 
cafe  now  before  the  court,  the  recorder  reflded  in  London, 
and  had  no  particular  notice  to  go  down  to  hold  the  feifion; 
the  corporation  had  been  fatislied  with  his^rm^r  abfence ; 
and  there  was  no  particular  reafon  for  his  attendance  at 
this  particular  time;  there  \12l%  a  fufficient  quorum  on  the 
.  ipot.  Therefore,  this  was  ndt  a  grofs  negligence  fuf- 
ficient to  forfeit  his  office  («?). 

Though  an  ofience  may  feem  to  have  fome  relation  to 
die  corporation,  or  the  corporate  ebara6ker  of  the  offender, 
yet,  if  the  corporation  have  another  remedy,  it  is  no  caufe 
of  dlsfranchifement:  thus,  the  mifirmployment  or  non- 
payment of  money,  belonging  to  the  corporation,  is  no' 
fufficient  caufe,  the'  corporation  having  a  remedy  by  ac- 
tion (b)  i  nor,  a  refufkl  to  pay  his  proportion  of  the  eXf- 
pence  of  renewing  the  charter  (c) ;  nor  a  refiifal  by  a  livery- 
man, to  make  the  ufual  payments  for  fupport  of  the  com- 
pany (d) ;  nor  general  difbbedience  to  the  laws  and  orders 
of  the  corporation ;  nor,  as  it  would  feem,  the  breach  of 
any  particular  bye-law  (e). 

The  diftribution  into. three  different  clafles,  of  the  of-' 
fences,  for  which  a  corporator  or  corporate  officer  may  be 
disfranchifed  or  removed,  refpe£ts,  principally,  the  power 

(d)  Rex  V.  the  corporation  of  Wells,  4  Bur.  1999. 

(b)  I  Ld.  Raym.  126.  (r)  i  Sid.  181. 

{d)  Comyn^s  Dig.  Franchife,  F.  33f  fiiys  Semb.  Cont,  Raym.  44^,* 

(0  sLd.  Raym*  1566, 

G  4  of 


88  THE    LAW 

\ 

of  trial :  thofe  offences  hitherto  confldered,  belong  to  the 
firft  clafsi  and  for  thefe,  the  power  of  trial  as  well  as  amo- 
tion belongs,  exclufively,  to  the  corporation  f^). But, 

for  offences  of  the  fecond  clafs,  as  it  is  the  lof$  of  credit^, 
which  renders  them  the  ground  of  forfeiture,  the  corpo- 
ration cannot  disfranchife  or  remove,  without  a  previous 
convi(ftion  at  common  law ;  for,  as  fuch  offences  have  no 
relation  to  the  corporate  charader,  the  corporation  cannot 
try  the  truth  or  falfehood  of  the  accufation :  it  is  for  this 
reafon,  that  it  is  no  caufe  to  remove  or  disfranchife  a 
man,  that  he  is  indiSIed  of  felony,  perjury,  forgery,  or 
Other  infaq[ious  crime,  becaufe  he  may  be  acquitted  of  the 
charge  {b). 

With  refpedl  to  the  neceflity  of  a  previous  convidion, 
as  the  ground  of  amotion,  writing  a  libel  by  one  member 
of  a  corpoi'atlon  againft  another,  has  been  ranked  with 
the  offences  of  this  fecond  clafs  {c)  .—As  this  has  no  relation 
to  the  corporate  duty  of  the  offender,  unqueftionably  it  can 
be  no  ground  of  amotion  without  a  previous  con  virion.— 
And  I  apprehend  it  would  be  too  much  to  lay  it  down  as  a 
general  propofition,  that,  after  conviftion,  writing  a  libel  is 
a  good  caufe  of  amotion;  unlefs  it  muft  be  taken  for 
granted,  that  to  be  convi6led  of  merely  writing  a  libel  muft 
reader  a.man  fo  infampus,.  as  to  make  him  unfit  to  ei^oy 
any  franchife  whatever  {d)» 

With  refpeft  to  offences  of  the  third  clafs,  there  has 
been  great  difference  of  opinion,  nor  does  the  point  feem 
yet  to  be  well  fettled,  "  whether,  for  fuch  offences,  the  of- 
fender can  be  removed  without  a  previous  convi6|ion  at 
common  law  ?"    The  great  difficulty,  in  fuch  cafes,  feems 

{a)  B.  R.  H.  154.     J  Bur.  539.  (^)  Style,  4.79. 

{c)  Vid.  Lane's  cafe,  7.  Ld.  Raym.  1304.     11  Mod.  ^^Q*     Fortes  c, 

275,  et  vid.  B.  R.  H.  155.     i  Bur.  539. 

{d)  Vid.  ante,  p.  76, 7S. 

to 


OF     CORPORATIONS. 

89 

to  be  the  poffibility  of  a  difFerence  of  determination  by  two 
different  jurifdidtions,  as  the  party  might  be  removed  by  the  • 
corporation,  for  the  fame  fact,  of  which  he  might  after- 
wards be  acquitted  on  a  trial  by  jury. — • Thus,  if  a 

man  produce  a  riot  at  a  corporate  meeting,  and  thereby  in- 
terrupt the  bufmefs  of  the  corporation,  this  is  an  offence 
againft  his  corporate  duty,  and  at  the  fame  time  an  offence 
indi<Stable  at  common  law ;  now,  it  might  happen,  that 
a  corporator  might  be  removed  for  fuch  an  offence  im- 
puted to  him,  and  yet  be  might  be  acquitted  of  it  on  a 

fubiequent  indictment, rThere  is  a  cafe,  however,  in 

which  a  removal  for  a  riot  in  the  council  chamber,  without 
previous  conviftion,  is  faid  to  have  been  held  good  (a)» 

In  the  cafe  of  the  Queen  againft  the  mayor  and  corpo- 
ration of  Newcaftle,  commonly  called  Parrot's  Cafe,  the 
corporation,  to  a  mandamus,  commanding  them  to  reftore 
the  profecutor  to  the  office  of  alderman,  returned,  that  he 
corruptly  bribed  one  of  the  burgeffes  to  vote  for  a  mem- 
ber of  parliament,  and  this  was  held  to  be  a  good  caufe  of 
disfranchifement,  j^there  were  z  precedent  conwidioni  "  and 
fo  it  refted,"  fays  Lord  Hardwicke,  "  for  I  do  not  find 
it  was  determined'*  (h). 

Two  cafes  of  amotion  for  bribery,  at  an  eIe£tion  of 
mayor,  arofe  in  the  city  of  Carlifle  about  the  fame  time  (r) ; 
in  one  of  which  (^)  the  court  is  made  to  fay,  **  bribery  is  . 
a  public  offence,  and  the  perfon  guilty  of  it  may  be  puniftied 
at  law;"  'and  the  chief  juft  ice,'  continues  the  report, 
*  was  at  firft  of  opinion,  ''  that  the  defendant*  might  be 

(a)  Rex  V.  Yate«,  Style  477,  cited  8  Mod.  loi.     '' 
Xb)  Reg.  V.  mayor.  Sec,  of  Newcaftle,  Mich.  8  Ann  cited  by  Ld. 
Hardwicke,  B.  R.  H.  155. 

(f)  From  the  7th  to  the  9th  of  G.  i, 
(d)  Rex  V.  Hutchifon,  8  Mod.  19. 

♦  It  ought  to  have  been  "  profecutor." 

removed 


9Q  THEtAW 

removed  from  his  freedom,  for  this  reafofi,  becaufe  bribery 
is  againft  the  interoft  of  the  corporation,  and  againft  the 
oath  of  fidelity,  which  the  defendant  made  to' them,  when 
he  was  admitted  to  his  freedom  there/'— But  the  better 
opinion  was,  ^*  that  this  was  an  offence  at  law,  and  not. 
relating  to  the  duty  of  his  office;   and  therefore  he  could 
not  be  disfranchifed  before  a  convidion  according  to  tile 
ordinary  courfe  of  law;   for  if  he  fhould  firft  be  disfran- 
chifed, and  afterwards  tried  at  law  for  this  crime,  and  be 
acquitted,  he  would  fuffer  damages  without  any  remedy/-. 
Yet  immediately  after  it  is  added  :  '  However,  it  was 
admitted  in  this  cafe,  that  the  defendant  might  be  removed 
before  conviction  at  law,  if  the  offence  did  relate  to  the 
duty  of  his  office ;  and  this  might  be  by  virtue  of  that  potver 
which  they  have  by  their  charter^   to  determine  among 
themfelves  whatever  (hall  be  againfl  the  public  good  of  the 
corporation,  and  certainly  bribery  is  an  offence  againft 
their  public  good ;  but  yet,  to  prevent  clafhing  of  jurifdic- 
tions,  *tis  expedient  that  the  party  (hould  be  convifted  at 
law  before  he  be  disfranchifed ;  to  which  the  court  in- 
clined/ 

By  one  report  of  the  other  cafe  (a)y  three  judges  againft 
the  chief,  arefaid  to  have  held,  that  fbr  this  offence  a  man 
might  be  removed  before  convi£Hon,  **becaufe,  if  he 
,  Could  not,  a  corrupt  member  would  in  the  mean  time  have 
a  vote  in  all  corporate  afts,  which  might  be  prejudicial  to 
the  corporation/' 

The  Chief  Juftice,  according  to  this  report,  held  diat 
as  this  was  a  crime  punifiiable  at  law,  the  offender  could 
UOI  be  remoYed  for  it  before  convi£lion ;  and  obferved, 
«*  that  a  jufter  trial  might'  be  had  in  the  courts  in  Weft* 
piinfter,  than  by  a  -  mayor  and  common  councilmen  in  a 

(a)  Rex  V.  iiwy<Jr,  fee.  «f  CitfUik,  9MmJ«  99—103.  V 

corporation. 


OF    CORPb  R  AtlONS.  9I 

corporation,  who  are  generally  corrupted,  and  ufc  arDjtfjury 
methods  oftrial.^' — But  in  a  marginal  note,  heisfaidto  ' 
have  afterwards  retracted  his  opinion  in  the  cafe  of  the 
'nMiyor  of  Tiverton,  where  he  held,  "that  bribery  was  a 
-fuiHcient  caufe  to  remove  a  man  from  his  office  b€for€ 
conviction." .         . 

In  another  report  of  the  fame  cafe  (^ ),  the  court  are  iaid 
to  have  been  unanimoufy  of  opinion,  ^^  that  though  thia 
was  an  offence  indidtable  at  common  law,  yet  being  alfi 
a  great  ofFence  againft  the  dirty  of  his  office,  he  might  be 
removed  without  any  convi<5iion  at  law." 

The  queftioh,  how  far  a  previous  convidlion  was  necef^ 
(ary  in  fuch  cafes  as  thefe,  was  again  agitated  in  the  time 
of  Lord  Hardwicke,  but  was  left  ftill  undecided.---'To  a 
mandamus  diredted  to  the  mayor  and  burgefies  of  Derby, 
commanding  them  to  reftore  €»ie  Sadler  to  the  freedom  of 
the  borough,  of  which  be  had  been  deprived;  it  was  re- 
turned, "that  on  the  14th  of  Odeber,  171S,  the  mayor, 
aldermen^  and  capital  burgefTes  were  afiembled  in  Common 
council  in  the  guildhall  of  the  town,  to  confult  about  the 
comiiKm  good  of  the  corporation,  and  being  fo  then  afiem- 
bkd,  the  f lid  Sadler,  and  feveral  other  perfbns,  contrary 
to  his  oath  and  the  duty  of  his  office,  in  Aght  of  the  mayor^ 
aktermen,  and  common  council,  riotoufly  afiembled  in  the 
ftreet  over  againft  the  common  hall,  to  the  difturbance  of 
Ike  common  council,  and  did  then  and  there  afiault  the 
coivftaUes  appointed  to  keep  the  peace,  and  did  then  and 
thiere  af&u)t  F.  wockayne,  Efi).  an  alderman  and  juftice 
of  peace  of  the  faid  borough,  as   he  was  going  to  the 
com^mon  hall,  zsii  prevented  him  fiorH  going  to  the  hujinefs 
tf-the  corforatimy  and  did  terrific  ajfault^  and  hinder  feveral 
Uher  perfonsfrom  going  to  the  common  ball:  and  though  the 

{a)  Fpytefc,  aoo, 

,  duiyor 


92  THE    LAW 

mayor  made  proclamation  for  them  to  depart,  Sadler  made 
a  great  noife  and  fhouting  to  deter  and  hinder  the  cryer 
from  making  the  proclamation,  and  would  not  depart,  but 
with  great  fhouts  did  hinder  the  mayor  in  thebufinefs 
aforefaid." 

Among  other  things,  it  was  objedled  to  this  return, 
that  the  offence  fet  forth  in  it  was  a  crime  indidlable  at 
common  law,  and  that  therefore  Sadler  (hould  have  been 
conviftcd  by  a  jury,  before  they  proceeded  to  disfranchife 
him. 

Lord  Hardwicke,  in  delivering  the  opinion  of  the 
court,  after  alluding  to  the  diftribution  of  offences  into 
the  three  claffes  before  mentioned,  and  obferving  on  the 
difference  of  opinion  that  had  prevailed,  with  refpeft  to 
the  neceflity  of  a  previous  conviction  in  thofe  of  the  third 
clafs,  took  a  view  of  the  cafes  that  had  occurred  on  the 
fubjeft;  and  concluding  with  that  of  Carlifle  juft  men- 
tioned, faid,  but  from  what  authority  does  not  appear, 
that  on  th(5  return  the  court  was  equally  divided  j  Lord 
Chief  Juftice  Pratt  and  Mr.  Juftice  Powis  holding  that  a 
precedent  conviction  was  neceffary ;  but  Mr.  Juftice  Eyre 
and  Mr.  Juftice  '  ,  being  of  a  contrary  opinion, 

and  holding,  that  for  things  which  are  merely  offences 
againft  the  common  law,  a  precedent  conviction  is  necef- 
fary, becaufe  in  fuch  cafe  the  removal  is  folely  on  account 
of  the  party's  infamy  i  but  that  for  an  aCtion  prejudicial 
to  the  corporation  as  well  as  contrary  to  the  common  law, 
the  party  might  be  disfranchifed  without  a  precedent  con- 
viction; "andfo,"  faid  his  lordfliip,  "that  cafe  reftedj. 
fo  that  it  is  hitherto  quite  unfettled,  and  it  being  a  point  of 
confequence^  it  is  not  fit  to  be  fettled,  till  it  come  direCUy 
before  the  court ;  but  in  this  cafe  there  are  offences  againft 
his  duty  returned  j  for  the  true  ground  of  his  forfeiture  in 

this 


OPCORPORATIONS.  ^3 

this  cafe  is,  that  he  endeavoured  to  binder  one  of  the  alder- 
men  from  attending  the  common  council,  and  hindered  others 
fram  going  thither  to  attend  their  bujinefs^  and  refufed  to  de- 
part at  the  command  of  the  mayor  by  the  cryer\  and  the  riot . 
is  but  a  circumftance  attending  his  breach  of  duty,  for  he 
might  have  been  acquitted  of  the  riot  on  ah  indiftment, 
and  have  been  guilty  of  a  breach  of  his  duty ;  or  he  might 
have  been  guilty  and  convi(9:ed  of  the  riot,  and  yet  have 
been  innocent  of  a  breach  of  his  duty  to  the  corpora- 
tion" {a). 

Lord  Mansfield,  in  the  cafe  of  the  King  artd  Richard- 
fon  (^),  took  notice  of  the  three  different  claffes  of  offences 
for  which  a  corporator  may  be  disfranchifed,  and  diftin- 
guifhed  between  the  firft  and  fecond  clafs  with  refpedl  to 
the  necefHty  of  a  previous  convidlion  ;  but  laid  down  no 
rule  with  refpeS  to  the  third  clafs,  fo  that  notwithftanding 
that  cafe,  the  point  remained  equally  undetermined  as 
before. 

In  the  cafe  of  the  King  and  the  corporation  of  Doncaf- 
tcr  (c),  the  caufe  alleged  for  the  removal  of  Wilsford  was, 
"that  he  had  unlawfully,  knowingly,  and  wilfully,  and 
contrary  to  the  duty  of  his  office  of  one  of  the  capital 
burgefles  of  the  'borough,  and'  without  the  confent  of  the 
then  mayor,  aldermen,  and  burgeffes  of  the  borough,  and 
alfo  without  the  confent  of  the  then  common  council  of 
the  faid  borough,  defaced  and  obliterated  the  entry  of  a 
refolution  particularly  defcribed,  which  had  been  made 
in  a  book  kept  by  the  corporation,  for  the  purpofe  of 
entering  the  orders  and  refglutions  of  the  mayor,  alder- 
men, and  burgeffes." 

(fl)  Rexv.  mayor  and  burgefles  of  Derby.    B.  R.  H.  153. 
.(*)  I  Bur,  538.  (c)  a  Bur.  738,  vid.  vol.  i,  44Z,  449. 

It 


'94  T  H  e     L  A  w 

It  was  contencied,  chat,  even  admitting  this  caufe  of 
tmodon  to  be  in  its  nature  fufficaenc,  yet  there  ought  to 
have  been  z previous  convi^on  at  common  law;  this  oX^ 
fence  being,  as  it  was  alleged,  both  an  offence  againft  the 
duty  of  his  office  as  a  corporator,  and  a^o  imdi^ahU  at 
common  law;  and  the  bnguage  of  Lord  Hanlwicke,  in 
the  caiie  of  Derby  before  mentioned,  was  repeated,  to 
{hew  that  his  lordfhip  confidered  this  point  as  unsettled : 
on  which  Lord  Mansfield  obferved,  that  corporation  law 
ought  to  be  well  fettled,  and  iaid,  he  was  therefore  willing 
to  hear  the  cafe  argued  a  fecond  time ;  but  it  was  after- 
wards determined  on  another  point ;  fo  that  this  queftion 
ftill  remains  undecided. 

It  has  been  aflerted,  that,  after  convi^^oo,  die  King 
mighty  by  writ  iifuing  out  of  the  court  where  the  convic- 
tion remains,  or  out  of  Chancery,  command  the  corpora- 
tion to  difcha^ge  the  party  convicted  [a) ;  but  this  dodrine 
has  been  juftly  difregarded  {b). 

In  ibme  inftances^  too,  the  crown  has  referved  to  itielf 
the  power  of  removing  at  fdeafure  all  or  any  of  the  prin* 
cipal  officers  of  the  corporation ;  but  whatever  may  be 
iaid  as  to  the  invalidity  of  fuch  a  refervation)  .as  being  re- 
pugnant to  the  purpofe  of  the  charter,  fuch  a  power  can- 
not certainly  be  exercifed  to  fuch  an  extent  as  to  deftroy 
the  whole  body  at  once,  and  render  the  eleflion  of  other 
officers  impoffible  (r). 

(fl)  Sawyer's  Arg.  Quo  W#r.  il,  cited  i  Bur.  515. 

{b)  1  Bur.  530.     (c)  Vid.  Rex  v.  Amery*  1  Term  Rep.  5x6—568. 


Section 


OF    CORPORATIONS*  95 


Sbctiok   X. 


Of  Bye  Laws. 

AtL  bodies  of  men,  tinited  by  common  intereft,  and 
tutyihg  affeirs  of  common  concern^  muft  have  fome  gene- 
ral fules  for^the  regulation  of  their  condudi,-  with  refpedi  to 
that  intereft  and  thofc  affairs.  Previous  to  pofitive  con- 
ftitutlon,  nciAcr  any  individual,  nor  any  number  of  indi* 
vidualS)  of  any  particular  defcription,  have  a  right  to  dic- 
tate to  the  community  at  large :  theTules,  therefore,  which 
are  to  dire£l  the  general  condu£l,  muft  be  eftabliihed  either 
by  the  majority  of  the  wills  of  the  whole  community,  or 
by  the  refolutions  of  a  feledl  body  to  whom  the  whole 
community  has  delegated  the  legiflative  authority.— Thefe 
general  rules,  when  applied  to  all  the  inhabitants  of  a 
country  united  under  one  independent  government,  are 
called  laws;  when  applied  to  fubordipate  communities, 
they  are  called  private  ordinances,  or  bye  laws. 

Ther.1  are  fome  focieties  which  are  formed  merely  by 
the  voluntary  aflbciation  of  the  members ;  and  there  are 
communities  which  have  a  known  defcription,  and  are  re- 
cognifed  as  forming  part  of  the  general  conftitution  of  the 
country :  the  former  muft  have  their  rules  or  bye  laws  as 
well  as  the  latter  j  but  they  receive  no  aid  from  the  gene- 
ral  law  of  the  land  to  enforce  obedience  to  their  rules,  and 
they  have  no  ultimate  remedy  againft  difobedience,  but  the 
expuliton  of  the  difobedient  member.  But  the  general 
law  of  the  land  will  enforce  obedience  to  the  bye  laws  of 
the  lattefy  when  duly  made  on  a  fubjeft  within  their  jurif- 

di^tion : 


96  THE     LAW 

di£tion :  thus  the  inhabitants  of  a  parifh  or  of  a  town  not 
incorporated,  may,  without  any  cuftom  to  authorife  them, 
make  a  bye  law  for  the  repair  of  the  church,  or  of  a  high- 
way, or  concerning  any  thing  which  the  public  good  re- 
quires to  be  regulated ;  and  in  fuch  a  cafe  the  majority 
{hall  bind  the  whole  {a).  So,  the  refiants  in  a  leet  may 
make  a  bye  law  relative  to  any  thing  which  concerns  the 
common  intereft  [b).  So  the  tenants  of  a  manor  ihay 
make  bye  laws  to  regulate  the  exercife  of  their  right  of 
common  {c)  :  "  but  this,"  fays  Lord  Coke  (^),  "  muft 
be  by  virtue  of  a  cuftom,  becaufe  it  concerns  their  own 
private  profit,  and  not  the  public  good :  and  if  there  be  a 
cuftom^  then  the  greater  partjhall  not  bind  the  lefsj  if  it  bf 
not  warranted  by  the  cuftom :  for  as  cuftom  creates  them,  fi 
they  ought  to  be  warranted  by  the  cujiom.*^  The  firft  part 
of  this  fentence,  taken  by  itfelf,  feems  to  mean,  "  that 
though  there  be  a  cuftom  authorifing  the  tenants  of  a 
manor  to  make  bye  laws,  yet  fuch  bye  laws  ihall  only  bind 
thofe  who  actually  aflent  to  them,  unlefs  there  be  alfo  a^ 
cuftom  that  the  majority  fhall  bind  the  whole,"  But  the 
latter  part,  which  is  evidently  given  as  a  reafon  for  the  af- 
fertion  in  the  former,  feems  to  relate  to  the  bye  laws  them- 
felvesy  and  to  require  only  that  they  fliould  not  go  beyond 
the  cuftom  which  authorifes  the  making  of  them  j  fo  that 
the  meaning  of  the  whole  fentence  feems  to  be  no  more 
than  this,  "  that  a  bye  law  made  by  the  majority  fliall  not 
bind  the  minority,  unlefs  it  be  fuch  a  bye  law  as  the  cuftom 
warrants." 

HoBART  exprefles  his  doubts  on  this  fubjedl  in  thefe 
terms.  *'  Alfo  the  tenants  of  one  manor  may  for  their 
common  or  the  like  make  bye  laws.     But  whether^  if  there 

(a)  5  C8.  63.  a.    Hob.  an.     3  Salk.  76.        (b)  Mo,  579,  584. 
(f)  I  Rol.  Abr.  366.    Mo.  75.    Hob.  212.        (d)  5  Co.  63.  a. 

be 


OF    CORPORATIONS.  97 

h  a  lord  and  court  whereunto  it  belongs^  that  ?nay  he  done^ 
hat  in  a  courty  and  by  confent  of  ^// the  tenants,  and. "with 
confent  of  the  lord,  and  by  prefcriptibn  — —  is  con- 
fiderable"  (a), — As  a  cuftom  is  required  to  atithorife  the 
tenants  to  make  any  bye  law  at  all,  it  is  apprehended,  that 
no  general  rule  can  be  laid  down  with  refpe<£l  to  thefe  cir- 
cumftances,  but  that  they  muft  all  depend  on  the  cuflom 
of  the  particular  manot :  thus  where  a  cuftom  was  alleged, 
by  which  **  the  fteward-  of  the  manor  held  a  court  twice 
in  every  year,  at  which,  on  reafonable  fummons,  all  the 
commoners  were  ufed  to  appear,  or  be  amerced  ;  and  the 
fteward,  dut  of  the  commoners,  ufed  to  choofe  a  jury  to 
inquire  of  all  purpreftures  and  misfeafances  within  the 
common ;  and  that  the  faid  jury  had  ufed  to  make  ordi- 
nances concerning  the  well- ufing  of  the  commbn;  and 
that  all  thofe  who  had  common,,  had  ufed  to  be  obedient  to 
the  performance  of  thofe  ordinances,  under  a  reafonable 
pain  to  be  fet  down  by  the  jury :  this  was  held  to  be  a  good 
cuftom,  and  the  bye  laws  made  under  it  binding  on  the 
commoners  at  large  (b) ;  and  it  has  been  frequently  ad- 
mitted, that,  by  caftom,  the  homage  may  make  bye  laws 
to  bind  the  tenants  of  the  manor,  both  freeholders  and 
copyholders  f^). 

With  refpeft  to  corporations.  Sir  Edward  Coke  fays  {d)y 
^*  They  cannot  make  ordinances  or  conftitutions  without 
a  cuftom  or  the  King's  charter,  unlefs  for  things  which 
concern  the  public  good,  as  reparations  of  the  church  or 
common  highways,  or  the  like/'— But  Hobart  fays,  "  that 
though  power  to  make  bye  laws  be  given  by  fpecial  claufe 
in  charters  of  incorporation,  yet  that  is  needlefs ;  for  it  is 

(tf)  Hob.  ^l%  {b)  James  v.  Tutney.    Cro.  Car,  49s. 

j  (f)  Vid.  Godb.  66,  pi.  6*.    Dalifon,  103.    Lanjbert  v.  Thornton, 

\  1  Ld,  Raym.  91.  (^d)  5  Co.  63.  a^ 

Vol.  II.  H  included 


^S  THE    LAW 

included  by  law  in  the  very  a£l  of  incorporation)  like  the 
power  to  fue  and  to  purchafe  $  and  as  reafon  is  given  to 
the  individual  fix  the  government  of  his  condufl,  fo  a  body 
corporate  muft  have  laws  as  a  politic  reafon  to  govern 
it''  (a).  And  according  to  this  opinion  of  Hobart,  it  has 
long  been  eftabliflied  that  this  power  is  neceflarily  inci- 
dent to  every  corporation  (^) ;  and  it  extends  to  every 
fubje£t  in  which  the  corporation  are  to  exercife  a  right ;  to 
franchifes  ruenify  granted,  as  well  as  to  thofe  which  they 
have  immemdrially  enjoyed,  or  which  are  coeval  with 
their  conftitution ;  to  thofe  which  are  to  be  enjoyed  beyond 
the  limits  of  their  ordinary  jurifdi£Uon,  as  well  as  to  thofe 
which  are  confined  within  them  :  thus  the  (herifFwick  of 
London  and  Middlefex  is  a  franchife  granted  to  the  citizens 
within  time  of  memory,  long  fubfequent  to  their  exiftence 
as  a  corporation,  and  to  be  enjoyed  beyond  the  limits  of 
the  city ;  yet  it  was  held,  in  the  cafe  of  Vanacker,  that 
they  might  of  common  right,  without  a  cuftom,  make  a 
bye  law  concerning  it  (c)» 

But  this  power,  like  every  other  incidental  power,  is 
incident  to  the  corporation  at  large,  and  not  to  any  (eleSt 
body;  yet  where  it  belongs  to  the  corporation  atlarge^ 
they  may  delegate  it  to  a  feled:  body,  who  then  become 
the  reprefentatives  of  the  whole  community,  and  may  ex- 
ercife it  to  the  (ame  extent  that  the  whole  community 
might  do :  it  is  frequently,  however,  given  by  charter  to 
a  feled  body  byian  expreis  claufe ;  but  then  the  fele£t  body 
do  not  reprefent  the  whole  community,  and  therefore,  iays 
Lord  Mansfield,  cannot  afiiune  to  themfdves  what  belongs 
to  the  body  at  large  {d) :  and  in  a  cafe  where  the  legifla- 

(  4 

{a)  Hob.  211.  (^)  I  Ld.  Raym«49S,    i  Bur.  tS29« 

(r)  City  of  London  v.  Vanacker,  i  Ld«  Raynm  <f98,  9. 
{d)  3  Bur.  x%yj. 

tive 


OT    CORPORATIONS.  99 

tive  power  was  given  to  a  common  council  created  by 
charter,  he  continues  to  obfcrve,  "  that  it  is  by  no  means  to 
be  compared  to  cafes  where  there  is  a  common  council  who 
are  fuppofed  to  have  been  created  by  the  commonalty^  and 
therefore  have  in  them  the  original  power  of  the  latter  {a). 

The  power  of  legiflation  may  likewife  be  veiled  in  a  . 
.  feleS  body  By  cuft'om  as  well  as  by  the  provifions  of  a 
charter :  thus  the  courts  at  Weftminfter  have  often  recog- 
nifed  a  cuftom  alleged  in  pleading  by  the  city  of  London, 
^^  that  if  any  cuftoms  in  the  fame  city  prevailing  and  uied, 
wtre  in  the  whole,  or  in  part,  hard  or  defedtive,  or  any 
thing  in  the  faid  city,  newly  arifing,  where  remedy  before 
that  time  was^  not  ordained,  fhould  need  amendment ;  the 
mayor  and  aldermen  for  the  time  being,  with  the  aflent  of 
the  commonalty  of  the  laid  city  in  common  council  aflembled, 
might  ordain  fit  remedy  as  often  as  it  (hould  feem  expedi- 
ent" (^)- 

Here  it  would  feem,  that  the  common  council  are  the 
reprefentatives  of  the  commonalty,  and,  perhaps,  it  is  to 
be  prefumed,  that  in  many  cafes  where  the  power  of  legif-' 
lation  is  claimed  by  a  feled  body^  by  cuftom  or  preferip- 
tion,  that  feledi:  body  is  to  be  confidered  as  having  been 
originally  conftituted  by  delegation  for  .that  purpofe^  and 
therefore  may  make  any  bye  law  which  the  corporation  at 
large  might  make.*— But  this  is  hardly  to  be  prefumed, 
where  it  appears  that  the  feleA  body,  claiming  the  legifla- 
tive  power,  is  not  eleded  by  the  fuffrages  of  the  c6mmu- 
oity  at  large,  but  the  vacant  places  are  filled  up  by  the  fur- 
vivors  of  die  felefl:  body  itfelf. 

When  by  the  terms  of  a  charter  the  legtflative  power 
is  placed  in  a  fele£l  body,  ^nA  given  in  general  terms  i 

(a)  3  Bur.  1837. 

(^^  Vid.  cafe  of  the  city  of  London>  i  Co.  lii  b.    Skin.  371*    i  Ld« 
Raym,  497,    3  Rur.  1323— and  many  other  books, 

Hz  or 


J  J 


lOO 


THE    LAW 


ar  when  it  is  claimd  in  general  terms  by  prefcription,  by  a 
felcft  body,  manifeftly  not  the  reprefentativcs  of  the  whole 
community  ;  the  principal  difFerence  between  the  power  of 
a  fele£l  legiflative  body  fo  conftitutcd,  and  that  of  the  whole 
corporation,  or  of  a  reprefentative  body,  feems  to  be  this  j 
that  the  former  can  make  no  bye  laws  by  which  the  con- 
ftitution  of  the  corporation  may  be  afFe£ted,  but  that  the 
latter,  in  fome  inftances,  may  make  fuch  a  bye  law  (<?). 

The  incidental  power  of  making  bye  laws,  it  is  evident, 
may  extend  to  a  greater  or  lefs  number  of  objeds,  accord- 
ing to  the  nature  and  defign  of  the  corporation,  and  the 
object  of  its  inftitution. — Where  a  power  is  exprefsly  given 
to  the  whole  body,' *nd  particular  objeSs  of  legiflation 
pointed  out,  it  may  be  a  queftion^  whether  the  general 
power  be  not  thereby  abridged,  and  confined  to  thofe  par- 
ticular objects  ?  Where  the  power  is  exprefsly  given  to  a 
JeteSi  body  to  make  bye  laws  in  particular  cafes,  it  may  be 
a  queftion,  whether  that  fele<9:  body  can  go  beyond  thofe 
particular  cafes?  ot  whether,  if  they  cannot,  the  general 
power  of  making  bye  laws  on  fub}e<3s  within  the  fcope  of 
the  inftitution,  and  beyond  thofe  particular  cafes,  (till  re- 
mains in  the  corporation  at  large  ?— To  none  of  thefe 
queftions  do  thq  decided  cafes  feem  to  afford  an  anfwer, 
and  yet,  as  general  queftions,  they  may  be  fuppofed  of 
fome  importance.— In  one  cafe,  indeed,  in  which  the  power 
of  making  bye  laws  was  exprefsly  given  to  a  fele£t  body,- 
the  mayor,  aldermen,  and  twenty-four  common  council- 
men,  in  the/lead^  for  and  in  the  name  of  the  whole  corporate 
body :  in  which,-  in  the  return  to  a  mandamus,  it  was  alleged, 
that  certain  bye  laws  were  duly  made  by  the  mayor,  aIder-« 
men,  and  commonalty ^  in  due  manner  met  and  affembledi  and  in 
which  the  j  ury  found,  that  on  a  particular  day,  the  then  mayor 


{a)  Vid.  ante,  p.  a6— 'Si, 


and 


OP     CORPORATIONS.  lOl 

and  aldermen  and  commonalty  did  in  due  manner  meet  and 
ajfemhle^  and  in  due  manner  make  the  bye  laws  :  the  court 
held,  that  it  muft  be  prefumed,  that  thefe  tye  laws  were  * 
made  by  a  competent  authority,  becaufe  the  jury  having 
found,  "  that  the  mayor,  &c'.  did  in  due  manner  mett^  and 
in  du4  manner  make  the  bye  laws,'*  they  might  have  been 
made  by  the  felcft  number  afting  in  the  name  of  the  whole 
corporate  body ;  and  therefore  it  muft  be  fo  intended  (a). ^^  , 
But  this  does  not  feem  to  furnifh  any  general  principle 
from  which  an  anfwer  may  be  given  to  any  of  the  quef- 
tions  above  ftated. 

It  feems,  however,  that  where  the  power  of  making 
bye  laws  is  vefted  by  chartcrr  in  a  fele£l  body,  a  bye  law 
ma^e  bythat  feleftbody,  in  conjunftion  with'perfons  of 
another  fdeft  description,  is  vqid,  whatever  might  be  the 
cafe  with  refpedl  to  a  law  made  by  the  whole  corporate 
Jbody. — Thus,  where  the  inhabitants  of  a  town  were  in- 
corporated by  the  name  of  Bailiffs  and  Burgeffes,  and  there 
3vere  twelve  capital  burgefles,  and  twelve  common  bur- 
geffes, befide  common  freemen,  but  the  power  of  making 
bye  laws  was  vefted  in  the  bailiffs  and  capital  burgeffes 
only  ;  and  the  bailiffs  and  all  the  burjgeffes,  including  the 
capital  and  common  burgeffes,  made  a  bye  law :  this  was 
one  reafon  given  for  holding  the  bye  law  to  be  void  (^}. 

jSo,  where  the  power  of  making  bye-laws  was  exprefdy 
given  to  the  mayor  and  aldermen  5  and  they,  with  the  ajfent 
of  the  commonalty^  made  a  bye-law,  which  altered  the  con- 
ftitution  of  the  corporation;  Lord  Mansfield  faid,  the  body 
at  large  had  no  power  to  make  bye-laws,  becaufe  that  power 
Wfas  given  by  the  charter  to  a^^/^^  body  (<:).. 

{«)  Green  v.  mayor  of  Durham,     i  Bur.  127,  i  ji. 
{b)  Parry  v.  Berry.    Comyn's  Rep.  169. 
if)  Rcxv.vHead,  4Bqr.  2515,2521. 

Hj  In 


V 


102  THB     LAW 

In  another  cafe,  we  are  told,  'Uhat  a  corporation  hais/' 
indeed,  ^*  an  implie^d  power  to  make  bye  laws ;  but  that 
where  the  charter  gives  a  company  a  power  to  make  them, 
they  can  only  make  them  in  fuch  cafes  as  they  are  enabled  to 
do  by  the  charter ;  for  that  fuch  power  given  by  the  char- 
ter implies  a  negative,  that  they  fhall  not  make  bye  la^  in 
any  other  cafes"  (^7}.-^But  the  example  given,  to  illuftrate 
this  pofition,  only  (hews,  that  when  an  exprefs  power 
is  given  to  make  bye  laws  for  the  condud  of  the  afiairs 
of  the  corporation,  they  camiot  make  bye  laws  on  fub- 
je£fa;  not  within  the  defign  of  their  inftitution ;  a  limita- 
tion, it  is  conceived,  implied  in  the  very  nature  of  the 
thing,  and  which  no  implied  or  exprefs  negative  was  necef- 
fary  to  eftablifh. 

This  was  the  cafe  of  the  Hudfon's  Bay  Company,  who 
were  made  a  corporation  by  charter,  and  were  thereby 
impowered  to  make  bye  laws  for  the  better  government 
pf  the  company,  and  for  the  management  and  diredion  of 
their  trade  to  Hudfon's  Bay :  "which,"  it  was  faid,  "  im- 
plied  a  negative  that  they  could  not  make  any  other  bye 
laws; 'much  lefs  could  they  make  bye  laws  in  relation 
to  projedls  of  infurance,  which  by  aft  of  parliament  were 
declared  to  be  illegal"  {b). 

It  Is  apprehended,  that  withont  this  implied  negative, 
arifing  from  the  power  of  making  bye  laws  being  ex- 
prefsly  given,  they  could  not  have  made  any  bye  law 
on  any  fubjefi:  which  did  not  relate  to  their  trade  to 
Hudfon's  Bay;  becaufe  any  fuch  bye  law  would  have 
been  foreign  to  their  inftitution. 

So,  when  a  corporation  is  ere£ted  by  a£):  of  parliament, 
for  a  particular  purpofe,  and  a  power  of  making  bye-laws 
relative  to  the  objecfts  of  the  inftitution,  is  exprefsly  given, 

{a)  Per  Ld.  Chancellor  Macclesfield.    %  Peer.  Williams^  209. 

{b)    Vid.  6  ,G.  I,   c.  18,    Child  v.  Hudfon's  Bay  Company. 

a  P.  W.  aoT.     , 

.  it 


y 


OP    CORPORATIONS.  IO3 

it  is  apprehended,  that  this  neither  enlarges  nor  abridges  the 
power  they  would  have  had  without  fuch  sin  exprefs  daufe. 

Eleemosynary  corporations  differ  from  others  with 
refpe£l  to  this  power  of  legiflation ;  for  the  founder  pre- 
scribes the  rules  and  ftatutes  by  which  the  members  are 
to  be  guided  in  the  whole  of  their  corporate  condudl;  nor 
have  they  any  power  to  altar,  modify,  or  amend  them :  It 
has  even  been  held,  that  the  founder  himfelf,  after  having 
given  a  body  of  ftatutes  to  the  college  of  his  foundation, 
cannot,  and  that  his  fucceflbr  cannot,  give  new  ftatutes  or 
alter  the  old,  without  an  authority  exprefsly  referved  for 
that  purpofe  {a).  But  this  muft  be  underftood  to  mean, 
that  he  cannot,  without  fuch  refervation,  alter  them  with- 
out the  confent  of  the  college;  for  if  the  college  confent  to 
receive  a  new  fet  of  ftatutes,  there  feems  no  good  reafon 
why  they  fliouid  not  be  bound  by  diem ;  and,  in  £i£t,  there 
are  many  inftances  of  colleges  a£ling  under  new  ftatutes, 
given  by  the  fucceilbr  of  the  founder,  where  it  does  not 
appear  there  was  any  original  refervation  of  a  power  to 
alter  or  repeal  the  old  (^). 

All  bye  laws  have  their  obligation  from  the  confent, 

either  exprefs  or  implied,  of  the  parties  who  are  to  be 

bound  by  them  (r ) ;.  and,  therefore,  every  member  of  a 

corporation  is  bound  by  the  bye-laws  of  that  corporation, 

without  exprefs  notice  of  them,  nor  is  it  an  obje<aion  to 

his  being  bound  by  any  particular  bye-law,  that  he  ivas 

not  a  member  of  the  corporation  at  the '  time  it  was 
made  (^). 

With  refpea  to  the  power  of  a  bye-law  to  bind 
ftrangers,   there  is    a  diflindion   between .  corporations 

(fl)  Skin.  513. 

(*)  Vid.  Dr.  Bentley  v.  bifliop  of  Ely,  Fitzg.  305.  Str.  91a.  St. 
John's  CoUege,  Cambridge,  v.  Toddington,  Cleric.  1  Bur.  158, 197, 
aoi.  (0  Sir  T.Jones,  145.  (*/)  Lutvir.405. 

H  4  which 


104  THt     LAW 

i;vhich  are  vefted  with  a  local  jurifdidlion,  and  thofe  which 
.are  eftablifhed  only  for  fome  particular  purpofe,  and  have 
only  ajurifdi^ion  over  their  own  internal  concerns. 

When  the  corporate  body  has  a  jurifdidtion  over  cefr 
tain  limits,  a  bye-law  made  by  them  for  the  public  good, 
and  whofe  ohjtSt  is  general  without  being  limited  to  peo^ 
pie  of  any  particular  defcription,  binds  every  body  coming 
within  the  limits  of  the  jurifdidUonj  whether  ftrangers  or 
members  of  the  corporate  body  (a) ;  for  every  man,  fays 
Holt,  who  comes  within  the  limits  of  the  local  jurifdi6tion 
of  a  corporation,  muft  take  notice  of  their  bye-laws  at  his, 
peril  (i)  y  thus,  a  bye-law  impofing  a  certain  duty  as  toll, 
for  a  good  confideration,  within  a  town  corporate,  muft  be 
taken  to  bind  grangers  coming  within  the  fcope  of  it,  as 
well  as  members  of  the  corporation  j  as  a  bye-law,  impofing 
a  certain  toll  on  every  twenty  bufhels  of  malt,  brought  by 
water,  and  fold  in  the  market-place,  at  Briftol. 

So,  a  bye-law  made  by  fuch  a  corporation,  afFe£ling 
only  perfons  of  a  particular  defcription,  fhall  bind  perfons 
coming  under  that  defcription,  ftrangers  as  well  as  inhabi- 
tants or  members  of  the  corporation. 

Thus  a  bye-law  of  the  city  of  London,  "  that  no 
citizen,  freeman,  Qxjiranger^  (hould  expofe  any  broad  cloth 
to  fale  within  the  city,  before  it  fhould  be  brought  to 
Plackwell-Hall  to  be  viewed  and  fearched,  fo  that  it  might 
appear  whether  it  was  faleable  or  riot,"  was  held  good  tp 
bind  ftrangers  as  well  as  citizens  \c). 

So,  a  bye-law,  by  the  mayor  and  common  council  of 
Exeter,  "  that  no  butcher,  or  other  perfon,  fhould,  within 
the  walls  of  the  faid  city,  flaughter  any  beaft,"  binds  the 
inhabitants  for  the  time,  as  well  as  perfons  who  are  free  of 

(«)  Brownl.  and  Goulds,  179.  (Jb)  Per  Holt,  Skip.  35. 

(0  Chamberlain  of  London's  cafe,  5  Co.  6a  b. 


X>F    CORPORATIONS*  I05 

the  corporation  (d).    And  many  other  examples  of  the 
fame  kind  will  occur  in  the  courfe  of  this  feftion. 

A  CORPORATE  company  may  have  a  jurifdiftion,  either 
by  prefcription  or  by  a<5l:  of  parliament,  over  all  of  the  fame 
trade  or  profeffion,  within  certaih  local  limits ;  thus  the 
college  of  phyficians  have  a  jurifdiftion  kven  miles  round 
London,  and  the  cutlers'  company,  of  Sheffield,  a  jurifdic- 
tion  over  perfons  pradlifing  that  trade,  within  the  lordfhip 
or  liberty  of  Hallamlhire,  and  fix  miles  round  (b) ;  and 
therefore  a^bye-law,  regulating  the  pradice  of  the  profef- 
fion,  or  trade,  within  thofe  limits,  will  bind  ftrangers  as 
well  as  members  of  the  college  or  company. 

But  where  ^corporate  company  have  not  a  &ctf/ jurif- 
c}i£tion,  their  bye-laws  cannot  bind  perfons  exercifing  their 
trade  who  are  not  members  of  the  company.— On  this  prin- 
ciple, It  was  held,  that  a  bye-law  of  the  butchers  company, 
of  London,  "  that  no  butcher  or  perfon,  being  a  ftrangcr, 
fliould  fell  any  veal  within  the  city,  unlefs  h^  fliould  drefs 
the  kidneys  in  the  fame  manner  that  the  kidneys  of  fheep 
were  dreffed,"  Was  held  not  to  bind  a  perfon  not  a  member 
of  the  company  (c).  But  in  the  fame  cafe,  it  is  faid  by  the 
court,  that  a  bye-law  to  fupprefs  fraud,  or  remedy  any  ge- 
neral inconvenience  arifing  from  the  practice  of  a  foreigner 
as  corruption,  or  the  like,  in  the  fale  of  their  meat,  muft 
have  bound  a  ftranger :  but  then,  it  is  apprehended,  it  muft 
have  been  made  by  a  corporation  or  company,  having  a 
local  jurifdidlion. 

So,  a  bye-law  by  the  corporation  of  Trinity  Houfe, 
•"  that  every  mariner,  within  twenty-four  hours  after  an- 

(a)  Pierce  v.  Bartrum.  Cowp.  269. 

(b)  Kirk  v.  Nowill  and  Butler,  i  Term  Rep.  118.  Vid.  the  cafe  of 
the  college  of  phyficians.    4  Bur.  2186,  and  5  Bur.  2740. 

(f)  iBulftr.  II,  12. 

chorage,   * 


106  TH£    LAW 

dK>rage,  in  the  Thames,  ihall  put  his  gun-pofwder  on 
ttuxcy*  does  not  bind ;  becaufe  the  corporation  has  no  ju- 
lifiti&ion  on  the  I'hames  (a). 

So,  a  byeJaw,  by  the  corporation  of  horners,  **  that 
none  of  the  company  fliall  buy  horns  within  twenty-four 
miles  of  London,  but  of  two  perfons,  by  them  appointed," 
is  void  i  among  other  reafons,  becaufe  they  have  not  jurif- 
dicVion  within  twenty-four  miles  (h). 

So,  a'bye-law,  of  the  univerfity  of  Oxford,  "that  every 
cne,  privileged  or  not  privileged^  found  in  the  ftreet  after 
cine  o'clock  at  night,. without  a  reafonable  excufe,"  ihall 
not  bind  the  townfmen  (c ). 

So,  a  bye^law,  by  the  homage  or  tenants  of  a  manor, 
does  not  extend  to  perfons  who  do  not  hold  of  the 
manor  {d). 

It  is  on  the  fame  principle,  want  of  jur!fdt£lion,  that  a 
byc-lavir,  *'  impofing  a  penalty  on  any  perfon  who  (hall* 
refufe  to  undertake  an  office  within  a  corporation,*'  is 
Toid  ;  becaufe  it  niay  include  ftrangers  [e). 

It  is  not  uncommon  for  the  corporation  of  a  ^tfr/K«/tfr 
tiade,  to  admit,  as  members,  men  who  pradlife  other  trades> 
or  vAio  have  no  trade  at  all.— In  which  cafe,  a  bye- law, 
'"  which  relates  merely  to  the  internal  regulation  of  the  affairs 
of  the  company,  and  does  not  infringe  any  principle  which 
rouft  concur  in  forming  the  validity  of  a  bye-law  in  ge- 
neral,** muft  bind  all  the  members  equally ;  otherwife  the 
admiflion  of  the  foreign  members  could  anfwer  no  other 
pirrpofe  than  that  of  conferring  on  them  the  general  pxi- 

{a)  Semb.  2  Jon.  145,  cited  Com.  Dig.  Tit.  bye-law,  C.  %. 

(b)  3  Mod.  159. 

(c)  Dodwell  V.  Univerfity  of  Oxford,  2  Vent.  33,  34. 

(J)  1  Rol.  Abr.  366.    Sav.  74,  vid.  Carth.  179.     i  Salk.  193. 
(1:)  Mayor  erf  Oxford  v.  Wildgoofc,  3  Ley.  293,  vol.  x^  392- 

vilegcs, 


OF    CORPORATIONS.  I07 

vileges,  ynthout  promoting  the  policy  of  the  corporation. 
But  where  the  bye  Jaw  refpefts  ithe  mode  of  condu£Ung  a 
trade,  it  can  extend  no  further  than  that  particular  trade, 
for  the  purpofe  of  which  the  corporation  was  created.— 
A  bye-law,  that  ihould  attempt  to  regulate  the  conduft  of 
any  foreign  member,  in  his  trade,  which  is  not  the  trade 
'  of  the  corporation,  would  certainly  be  void  (a)^ 

All  bye-Iaws  muft  be  reafonable  and  conliftent  with 
the  general  principles  of  the  law  of  the  land ;  and  their' 
reafonablenefs  and  legality  muft  be  determined  by  the 
judges  in  the  fuperior  courts,  when  they  are  brought  pro- 
perly before  them  (b) . 

By  ft.  15  H.  6,  c.  6,  after  reciting,  that  "matters, 
wardens,  and  people  of  guilds,  fraternities,  and  other  com- 
panies incorporate,  in  feveral  parts  of  the  realn),had  often, 
by  colour  of  rule  and  governance,  and  other  terms  in  ge- 
neral words,  to  them  granted  and  confirmed  by  charters 
and  letters  patents,  of  the  King's  progenitors,  made  many 
unlawful  and  unreafonable  ordinances,  as  well  of  things  of 
which  the  cognifance,  puniihment,  and  corredion,  belong- 
ed only  to  the  King,  lords  of  franchifes,  and  other  per- 
fonsi  and  by  which  the  King  and  others  were  difherited  of 
their  profits  and  franchifes,  as  of  things  which  frequently, 
in  confederacy,  were  made  for  their  fingular  profit  and  com- 
mon damage  of  the  people:"  it  was  enadled,  that  from 
thenceforth  ^^  no  fuch  mafters,  wardens,  or  people,  fhouLd 
make  or  ufe  any  ordinance  which  ihould  be  to  the  dtjherim 
fin  of  the  King*  s  franchifeSy  or  of  other s^  oragainft  the  com-^ 
mon  profit  ofthepeople^  nor  any  ordinance  of  char ge^  unlefs  it 
were  firft  difcuffed  and  approved  for  good  and  reafonable, 
admitted  by  the  ^'i^/V^y  of  peace  or  chief  gov^rmrs  of  the 

(tf)  Vid,  Mo.  579,  585,  6.  {b)  Dia.  Ld.  Raym.  114. 

cities. 


I08  THE     LAW 


• 


cities,  boroughs,  or  towns,  where  fuch  guilds,  fraternities, 
and  companies  were,  and  before  them  entered  of  record, 
under  pain  of  forfeiting  their  charters,  and  paying  a  fine  of 
lol.  to  the  King  for  every  ordinance  made  or  ufed  to  the 
contrary.'*  And  this  ftacute  was  to  continue  during  die 
King's  pleafure. 

By  ft.  19  H.  7,  c.  7,  after  reciting  the  preceding  a£t, 
and  that  it  was  expired ;  it  was  enaded,  ^^  that  no  mafters, 
wardens,  and  fellowHiips  of  crafts  or  myfteries,  nor  any 
rulers  of  guilds,  or  fraternities,  fhould  take  upon  them  to 
make,  or  to  execute  any  ads  or  ordinances  by  them  there* 
>  tofore  made,  in  dijheritance  or  diminution  of  the  prerogative 
,  cf  the  crown^  or  of  others,  nor  again/i  the  common  profit  of 
the  people^  but  that  the  fame  a£ts  or  ordinances  fliould  be 
examined  and  approved  by  the  chancellor,  treafurer  of 
England,  or  chief  juftices-  of  both  benches,  or  three  of 
them,  or  before  both  the  juftices  of  aflize  in  their  circuit 
or  progrefs,  in  that  fhire  where  fuch  adls  or  ordinances 
were  made,  on  pain  of  forfeiting  40I.  for  every  time  that 
they  fliould  do  to  the  contrary." 

Notwithstanding  thefe  ftatutes,  it  has  been  de- 
termined {a\  that  if  an  ordinance  be  reaftnable  and  legal  in 
itfelf,  it  may  be  put  in  execution  without  having  been  al- 
lowed ;  but  Rolle  {h)  fays,  **  it  feems  the  penalty  of  40I.  (hali 

be  forfeited,  though  the  ordinance  be  not  void." This 

opinion,  however,  does  not  feem  to  be  well  founded;  for, 
by  the  words  and  obvious  meaning  of  the  ftatutes,  the  for- 
feiture is  incurr<:d  only  by  executing,  without  the  requifite 
allowance,  an  ordinance  in  dijheritance  or  diminution  of  the 
prerogative  of  the  King^  or  of  others^  or,  ^gainft  the  common 
profit  of  the  ptople :  but  an  ordinance,  which  is  "  reafonable 
and  legal  in  itfelf,"  cannot  come  under  this  defcription. 

(a)  5  Co.  63  b.  .  (b)  I  Rojle  Abr.  363, 

It 


OP    CORPORATIONS.  IQ^ 

It  has,  however,  been  frequently  determined,  "  that,  if 
a  bye-law  be  bad  in  itfelf,  it  cannot  be  enforced,  though  it 
has  been  allowed,'  according  to  the  ftatute  {^),  and  Sir 
Edward  Coke  obferves  (^),  "  that  this  ftatute  does  not 
corroborate  any  of  the  ordinances  made  by  any  corpora- 
tion, which  are  fo  allowed  and  approved,  as  the  ftatute 
dire£ts,  but  leaves  them  to  be  affirmed  as  good,  or  diiaf- 
firmed  as  void,  by  the.laW;  and  that  the  fole  benefit  which 
the  corporation  obtains  by  fuch  allowance,  is,  that  it  (hall 
not  incur  the  penalty  of  40I.  if  the  ordinance  be  put  in 
execution."  And  when  it  was  faid,  in-  argument  by  Sir 
Bartholomew  Shower,  that  a  bye-law,  which  was  the  fub- 
jecS):  of  difcuffion,  had  been  figned  by  Lord  Chancellor 
Finch,  the  court  anfwered,  "  it  was  never  the  better  for 
that,  for  that  was  done  of  courfe ;  fo  we  ufe  to  do  in  the 
circuits,  but  if  the  ordinance  be  not  good,  the  parties  muft 
look  to  that  at  their  peril"  (r). 

If  a  bye-law  be  contrary  to  the  general  laws  of  the 
kingdom,  it  is  void,  though  juftified  by  the  terms  of  the 
charter;  for  all  bye-laws,  fays  Hobart,  muft  ever  be  fub- 
}eSt  to  the  g^nersd  law  of  the  realm,  and  fubordinate  to 
it ;  and  if  the  King,  in  his  letters  patent  of  incorporation,- 
make  ordinances  himfelf,  they  are  fabje(£t  to  the  fame  rule 
oflaw(i). 

A  BYE-LAW  made  by  a  corporation,  created  by  letters 
patent,  impofing  the  forfeiture  of  goods,  is  void,  even  if  the 
letters  patent  authorife  fuch  a  bye-law;  foan  exprefs  grant 
of  fuch  a  power,  in  letters  patent,  was  adjudged  void  in  a 
cafe  in  the  41ft  of  Elizabeth,  where  it  appeared  that  King 
•  Henry  the  fixth  had  granted  to  the  corporation  of  dyers,  in 

(a)  Vid.  Modre,  577.    Norris  v.Staps,  Hob.  210.    Brownl.  and 
Goulds,  48.    I  Term  Rep.  118.  ,  (*)  "  Co.  64  b. 

(<•;  Comb.  »»2.  ^  (d)  Vid.  Hob.  »io. 

London» 


^  I 


no  THE    LAW 

London,  power  to  fearch,  &c.  and  if  they  found  any  doth 
dyed  with  logwood,  that  they  might  feize  the  cloth  as  for- 
feited {a)  J  and  the  reafon  given  for  this,  is,  that  fuch  a 
power  is  contrary  to  the  29th  chapter  of  magna  charta;  for 
that  goods  and  chattels  are  included  in  the  prohibition, 
that  ^^  no  man  (hall  be  difleifed  of  his  frediold/' 

Neither  can  a  corporation,  created  by  ad  of  parlia- 
ment, make  fuch  a  law,  unlefs  the  power  be  expressly  given 
by  the  ad  (b). 

A  BYE-LAW  forievying  money  on  the  fubje£l  in  gene- 
ral, without  any  benefit  to  the  party  chained,  is  void,  be- 
caufe,  by  the  general  law  of  the  land,  no  money  can  be 
levied  on  the  fubjeil:,  but  by  slQ.  of  pari  lament  (f)« 

But  where  the  law  of  the  land  throws  a  burthen  on  the 
particular  fociety,  of  which  a  man  is  a  member,  a  bye-law, 
ailefling  a  fum  on  the  individuals  for  difibharging  that 
burthen,  is  good :  as  a  bye-law  afTefling  a  ium  on  the  pa- 
rifbioners,  or  townfmen,  for  the  repair  of  a  church  or  a 
highway  (d).  So,  a  bye-law  afleffing  a  fum  for  pontage, 
murage,  or  other  duties  to  be  paid  by  the  borough ;  or  for 
cleaning  the  ft reets  (/?).— So,  a  bye-law,  "  that  every 
inhabitant  of  St.  Alban's  (hould  pay  a  reafonable  fum  for 
building  the  courts^  when  Queen  Elizabedi  appointed  the 
terra  to  be  held  there  (f). 

When  a  corporation  are  bound  to  repair  a  bridge,  it 
may  be  a  queftion,  how  far  they  m^y  impofe  a  tax  on  die 
inhabitants  within  their  liberties,  but  not  members  of  the 

(a)  Wahham  v»  Atiftin>  S  Co.  115,  a.  1*7  b»  a  Inft*  47.  1  Biilftr* 
ii>  12.  (b)  X  Tenn  Rep.  1x8. 

(f )  Vid.  the  cafe  of  quo  war.  Trcby's  arg:  29,  Sawyer'a  arg.  4a. 
(d)  Vid.  Jeffrey^s  cafe,  5  Co.  66  a.  et  ante,  p.  96. 
W  Mo.  580^  (/)  Clark's  cafe,  5 Co.  643; 

corporation* 


OF     CORPORATIONS*  In 

corporatioiu    It  is  apprehended  this  muft  depend  on  t}ie 
circumftances  of  each  particular  cafe« 

A  RULE  was  granted  againft  the  mayor  of  Tenter-dcn, 
calling  on  him  to  (hew  caufe,  why  an  information  ihould 
not  be  exhibited  againft  him  for  taxing  feveral  perfons  who 
lived  out  of  the  liistits  of  the  corporation,  to  contribute  Sn 
the  building  <^'  a  bridge,  and  to  other  charges  arifing  within 
the  corporation ;  he  fhewed  for  caufe,  that  though  the  |>er- 
fons  thus  taxed  did  not  live  within  the  corporation,  yet 
they  dwelt  within  the  liberties,  and  were  intitled  to  the 
like  privileges  as  thofe  who  lived  within  the  corporation 9 
one  of  which  was  to  be  exempted  from  ^1  taxes  in  the 
county  at  large;  fo  that  it  was  reaibnable  they  fhould  be 
contributory  to  the  charges  within  the  corporation,  as  they 
had  the  benefit  of  its  privileges ;  and  that,  beAde  this,  the 
tax  in  queftion  had  been  paid  by  fuch  out-dwellers  time 
outofmind^ 

The  court  dtrsf^ed,  that  this  matter  (hould  be  tried  on 
an  information,  for  two  reafons ;  the  one,  that  a  fingle  per- 
ion  might  not  be  able  to  conteft  the  matter,  in  an  adlioz^ 
againft  the  cprporation ;  the  other,  that  whether  a  verdi6t 
was  given  for  or  againft  fuch  fingle  perfon,  it  would  n«t 
end  the  conteft  {a). 

A  BYE-LAW  of  a  company^  **  That  every  memBer 
defied  to  an  office,  fhall  on  or  beforer  his  admiiSon,  pay  a 
fum  of  money  to  tfae^funds  of  the  company,''  is  a  goal 
bye-law.— —Thits,  a  bye-law  of  the  vintner's  company, 
an  London,  ^  That  every  member  chofen  on  the  livery, 
fhall,  before  his  admiilion,  pay  a  fum  of  3il.  13s.  4.d/'  has 
been  frequently  held  good  (^}« 

(^i)  SMod.  114, 

(O  Raym.  4461 1  Bur,  %z^  vid«  voli  tp  385^  jSf; 

So, 


112  THE    LAW 

So,  a  bye-law,  impofing  a  fine  on  a  perfon  elected  to 
an  office  and  refiifing  to  undertake  it  (^ },  or  refufing  to 
take  the  oath  appointed  to  be  taken  by  the  corporation  ad;; 
for  his  refufal  to  take  the  oath,  is  a  refufal  to  do  that  with- 
out  which  the  office  is  void,  and  cannet  be  held  (b), 

A  BYE-LAW,  ''  That,  on  the  annu^  appointment  of 
the  officers  of  a  corporate  company  within  a  town,  they 
ihould  provide  a  convenient  and  competent  dinner  for  all 
the  matters  and  brothers  of,  the  company,  and  that  every 
one  who  (hould  be  abfent  on  that  day,  fhould  pay  a  like 
proportion  to  the  common  flock,  with  the  mafter  at  the 
dinner,  under  a  penalty  of  3s.  4d."  has  been  held  good  (r). 

But  a  bye-law  made  by  a  new  corporation,  "  That 
a  perfon  chofen  fteward  (hall  provide  a  dinner  for  the 
corporation,  on  a  certain  day,"  has  been  held  void,  un- 
lefs  it  appear  that  it  is  for  the  purpofe  of  the  corporation 
aflembling  to  choofe  officers,  or  tranfaft  fome  other  bufinefs 
for  the  intereft  of  the  corporation  (d).  And  in  "order  to 
avoid  feeming  to  overturn  former  deciiions,  the  diftindlion 
has  been  made  between  old  and  new  corporations,  in  the 
former  of  which  fuch  a  bye-law  had  been  held  good  (e). 

Under  a  general  power  to  make  bye-laws,  a  corpora- 
tion cannot  make  a  hye-law  impofing  an  oath  on  a  mem- 
ber on  his  admiffion  (/). 

An  ex  pojl  faSio  bye-law  feems  void :  as,  a  bye-law, 
"  that  a  particular  perfon  fhall  pay  los.  per  month  for 
having  fet  up  fhop,  without  licence  from  the  mayor,  alder- 
men, and  common  council,"  without  a  previous  general 

{dy  Vid.  vol.  I,  386,  389.  {b)  a  Show.  159. 

(0  Lutw.  1324,  (</}  Ld.  Rayra.  114. 

(r)  Id.  ibid,  et  vid.  Wallis's  cafe.     Cro.  Jac.  555^  cited  Lutw. 
i3»o.  (/)  Str.  537>  539,  vid.  vol.  i,  363. 

bye- 


OF    CORPORATIONS.  II3 

bye  law  to  the  feme  purpofe,  even  on  the  fuppofition,  that 
fuch  a  previous  bye  law  would  have  been  good  (« )•  .      • 

A  BYE  LAW  may  regulate  or  modify  the  conftitution  of  a 
corporation,  but  cannot  tfZf^r  it. 

How  far  a  bye  law-  may  interfere  in  matters  of  ek^ion 
to  the  offices  of  a  corporation,  has  been  conftdered  in^a 
former  fecStion  (i).  To  the  examples  there  given,  we  fhall 
add  the  following  one. 

,    A  CHARTER  gave  the  power  of  making  bye  laws  to  the  , 
mayor,  jurats,   and  forty  common  councilmen,  a  body 
conftituted  by  the  charter  as  diftindl  from  the  commonalty, 
and  veiled  the  election  of  common  councilmen  in  the  ' 
mayor,  jurats,  and  commonalty  at  large. — The  mayor, 
jurats,  and  common  council  made  a  bye  law,  "  confining  the 
eledion  tothe  mayor,  jurats,  ?^ifuch  of  the  comiTionalty 
as  were  or  fhould  be  of  the  common  council  for  the  time 
being,  and  fixty  others  of  the  faid  x:ommonalty  who  were 
or  fhould  be  the/enior  common  freemen  for  the  time  being, 
as  they  ihould  ftand  in  order  of feniority  on  the  books  of 
admiffion  of  freemen  ^  fuch  fixty  not  being  mayor,  jurats, 
or  of  the  common  council." 

The  court  held  this  bye  law  to  be  manifeflly  contrary 
to  the  intention  of  the  charter — the  latter  gave  the  right  to 
the  whole  body  of  the  commonalty;  but  this  bye  law  had 
been  made  by  a  part  of  the  corporation  to  deprive  the  reft 
of  their  right  to  elecS,  without  their  confent  (f ). 

The  fame  rule  obtains  with  refpedt  to  other  parts  of  the 
conftitution  eftablifhed  by  the  charter. 

Previous  to  the  15th  of  Charles  the  fecond,  the  com- 
mon council  of  the  town  of  Northampton,  which  was  a 

(^)  iKeb.  733.  (Jj)  S.  8,  ante,  p.  to— 30. 

(r)  Rex  V.  Cutbufli>  common  councilman  of  Maidftone.    4  Bur. 

»%04,  2208. 

Vol.  II.  I  corporation 


114  T  M  E     t  A  DT 

corporation  b7  prefcriptton,  confifted  of  the  mayor  and 
bailiflfs  for  the  time  beingi  fuch  other  burgefles  as  had  been 
mayors  or  bailiffs^  and  ^'  forty -eight  burgefles,"  called  the 
Company  of  Forty*eight. — The  right  to  the  freedom  of 
the  town  was  by  birth  or  fervitude,  or  by  the  eleSfion  of 
the  common  council  fo  compofed,  or  the  major  part  of 
tiiem  in  common  council  allembled. 

Charles  the  fecond,  in  the  fifteenth  year  of  his  reign, 
*  granted  the  town  a  charter,  confirming  the  former  confli- 
tution,  and  giving  the  power  of  making  bye  laws  to  the 
common  council.— They  made  a  bye  law,  "that  any  per-* 
fon  not  intitlejd  to  the  freedom  of  the  town  by  birth  or 
lervitude,  fhould  be  admitted  to  it  on  payment  of  lol.  with 
Ae  ufual  and  accuflomed  fees/* 

The  court  were  clearly  of  opinion  that  this  bye  law 
was  an  alteration  of  the  conflitution  given  by  the  crown, 
and  therefore  void  (a). 

By  a  charter  of  Queen  Elizabeth,  the  common  council 
of  Hclfton,  in  Cornwall,  confifled  oT  the  mayor  and  four 
aldermen,  who  likewife  had  the  power  of  making  bye 
laws. — ^The  mayor,  aldemuen,  and  commonalty,  who  con- 
lifled  of  an  indefinite  number,  had  the  right  of  ele&ing 
fuch  of  the  inhabitants  as  they  thought  fit,  to  be  burgefles 
and  freemen.— The  mayor  and  aldermen,  with  the  ajfent  of 
the  commonalty^  made  a  bye  law,  **  that  the  mayor  and  al- 
dermen alone  fhould,  without -the  concurrence  of.  the 
commonalty,  for  the  future,  exercife  that  right." 

Great  flrefs  was  laid  on  the  circumflance,  that  this 
bye  law  wa*  made  with  the  aiTent  of  the  commonalty  % 
but  Lord  Mansfield  faid,  that  was  of  no  importance,  be- 
caufe,  as  the  power  of  making  bye  laws  was  given  to  the 
common  council,  the  body  at  large  could  not  interfere; 

(a)  Rex  V.  Breton,  &c»    4  Bur.  2260,  22(7. 

and 


OF  CORPORATIONS,  II5 

and  the  common  council  could  not  take  from  the  body  at 
large  a  right  which  the  charter  had  vefted  in  them  (a). 

By  the  cuftom  of  the  city  of  London,  a  man  to  be  in- 
titled  to  th^reedom  of  the  city  muft  firft  be  free  of  fom 
company ;  but  it  is  not,  by  the  cuftom,  necel&ry  that  he 
fhould  be  free  of  that  particular  company  of  which  he  ex« 
ercifes  the  trade. -^  A  bye  law,  "  that  a  man  who  exercife^ 
a  trade  within  the  city,  of  which  there  is  no  incorporate 
company,  ihall  take  the  freedom  of  a  company  of  a  trade 
that  has  an  affinity  to  that  which  he  exercifes/'  has  been 
held  void*  But  a  bye  law  *'  which  orders  a  man,  who 
pra<£lifes:a  trade  of  which  there  is  an  incorporate  company^ 
to  take  his  freedom  in  that  particular  company,"  has  been 
held  good. 

Trerb  is  g  company  of  muflcians,  but  no  company^ 
of  dancing  mafters.— A  bye  law,  after  reciting  that  many 
foreigners,  not  being  free  of  the  city,  nor  members  of  any 
fraternity,  took  upon  them  the  art  of  dancing,  enafled^ 
^^  that  every  perfon  ufing  the  occupation  of  mufic  and 
dancing  within  the  city,  who  (hould  have  a  privilege  to  be 
made  free  by  patrimony,  fhould,  at  the  next  court  of 
affiftants  of  the  company  of  muiicians,  after  notice,  ac- 
cept and  take  upon  himfelf  the  freedom  of  the  faid  com- 
pany ;  and  that  every  perfon  who  had  ferved  an  appren- 
ticefhip  to  the  myftery  of  mufic  and  dancing,  and  not 
being  made  free,  fhould  yet  exercife  his  trade,  fhould  for- 
feit  lol.  for  every  offence." 

An  a£bion  being  brought  in  the  mayor's  court  to  recover 
the  penalty  on  a  breach  of  this  bye  law,  and  removed  into 
the  court  of  King's  Bench ;  the  court  faid,  that  though 
the  cuftom  was,  that  whoever  was  free  of  the  city  mufl 
be  free  of  fofne  company ;  yet  that  cuftom  did  not  oblige 

(a)  R^v*  Head.    4  Bur.  2515,  2521. 

I  2  aman 


Il€  THE    LAW 

a  man  to  be  of  any  part iatlar  company ;  for  that  if  it  fliould, 
then,  though  the  defendant  might  be  intitled  by  birth  to 
be  free  of  one  company,  yet  he  muft  alfo  be  free  of  ano- 
ther, which  was  unreafonablc.— It  might  be^a  queftion, 
whether  the  city  had  a  power  to  compel  men  of  no  trades 
to  be  free  of  thofe  companies  which  were  fuitable  to  their 
profeffions ;  dancing  was  tio  trade,  but  it  might  be  called 
a  profef&on:  it  was  true,  mufic  was  fuitabfe  to  it ;  but  it 
was  not  neceflary  that  a  dancing  mafter  fhould  be  free  of 
the  muiicians'  company :  there  was  no  fellowihip  of  re- 
finers $  but  the  court  of  aldermen  could  not  order  them  to 
be  free  of  the  goMfmiths*  company,  which  was  the  mofi: 
(uitable  to  them. 

This  bye  law,  they  added,  was  in  th^  nature  of  a  mo- 
nopoly to  the  company  of  muficians,  who  C9uld  not  be  com^ 
felled  t6  make  the  defendant  free  of  that  company  if  they  re* 
fufed{a). 

If  this  laft  obTervation,  however,  had  any  material  in- 
fluence on  the  decifion  of  the  cafe,  the  latter  is  not  to  be 
confidered  as  an  authority,  becaufe,  as  will  be  feen  from 
the  next  ca£^  the  company  in  which  the  bye  law  direds 
the  party  to  take  bis  freedom,  may  be  compelled  by  man- 
damus to  ^dmit  him.  But,  it  is  apprehended,  that  the 
beil  reafon  for  this  decifion  is,  that  all  companies  being 
eftabliihed  for  the  regulation  and  fuperintendance  of  their 
own  particular  trades,  it  can  anfwer  no  purpofe  of  that 
kind  to  compel  a  man  who  pradHfes  a  trade  of  which  there 
ts  no  company,  to  take  his  freedom  in  any  one  company 
rather  than  in  another. 

A  BY£  LAW  of  the  city  of  London,   after  reciting, 
**that  feveral  pcrfons  not  free  of  the  joiners'  company  " 
had-exercifed  the  trade  of  a  joi^^er.in  an  unfkilful  and  frau- 

(fi)  Robinibn  v.  Grofcourt^  5  Mod.  104. 

dulent 


OF    CORPORATIONS.  II7 

dulent  manner,  which  could  not  be  redreflcd  while  fuch 
perfons  were  not  under  the  orders  and  regulations  of  the 
company,"  enabled,  ^  that  no  perfon  fhould  ufe  that  trade 
within  the  city,  without  being  free  of  the  company,  under 
the  penalty  9f  lol," 

One  George  Wannel,  who  had  ferved  an  apprentice- 
ihip  to  4  nlerchanf  taylor,  and  had  been  admitted  to  the 
freedom  of  the  merchant  taylois-'  compfmy,  exercifed  the 
trade  of  a  joiner,  without  being  free  of  that  coippany ;  for 
which  reafon,  on  his  application  to  the  chamberlain  to  be 
admitted  to  the  freedom  of  the  city,  the  chamberlain  re- 
fufed :  Wannel  then  obtained  a  mandamus,  to  which  the 
chamberlain  returned  the  bye  law,  and  the  faft  of  Wan- 
nel's  exercifing  the  tfade  of  a  joiner,  withoj^t  being  free  of 
that  company :  the  court  thought  that  this  was  a  reafon- 
able  bye  law,  as  it  tended  to  prevent  fraud  and  un(kilful« 
nefs  in  a  trade,  of  which  none  but  a  company  who  ex- 
ercifed lilt  fame  trade  coidd  be  judges :  ,that  it  did  npt  jake 
away  the  party's  right  to  his  freedom,  but  only  his  elec- 
tion of  what  company  he  fhould  be  free ;  and  directed  him 
to  go  to  the  proper  company  .—But  the  Chief  Juftice  flarted 
a  queftion,  whether  the  profecutor,  having  ferved  his  ap- 
prenticefhip  to  a  merchant  taylor,  could  compel  the 
joiner's*  company  to  admit  hirfi,  which  unlefs  he  could  do 
|he  bye  law  would  be  void :  to  which  Mr.  Juftice  For- 
tefeue  anfwered,' that  the  impofition  of  the  penalty  of  lol. 
for  not  taking  up  his  freedom  in  that  company,  was  a  ftrong 
implication  that  they  were  bound  to  grant  it,  and  the  cafe 
being  again  argued,  the  court  exprefled  their  unanimous 
^pinion,  that  they  might  be  compelled  by  mandamus  to 
admit,  in  order  to  prevent  the  forfeiture  of  the  penalty  (tf). 

ia)  Waimely.  chamberlain  of  London.    811,675,    8  Mod.  267. 

I  3  A  BYE 


V 


Ilg  THE    LAW 

A  BYE  LAW  of  the  mayor,  aldermen,  and  common  coun* 
cil  of  the  city  of  London,  after  reciting,  *'  that  many  pcr- 
fons,  who  exercifed  the  trade  of  butchers,  had  obtained 
freedoms  of  othr  companies,  by  redemption  or  otherwife, 
by  which  means  the  company  of  butchers  was  much  di- 
minifhed  and  fallen  into  decay ;"  to  remedy  this  inconve-  " 
nience,  ordained,  **  that  every  perfon,  not  being  already 
free  of  the  city,  occupying,  ufing,  or  exercifjng,  or  who 
(hould  occupy,  ufe,  or  exercife  the  art,  trade,  or  myftery 
of  a  butcher,  within  the  city  or  its  liberties,  fiboiild  tak^ 
upon  himfelf  the  freedom  of  the  company  of  butchers,  and 
that  no  perfon  then  ufing,  or  who  fliould  thereafter  ufe  or 
exercife  the  trade  of  a  butcher  within  the  faid  city  or  liber- 
ties, fhould  be  admitted  to  the  freedom  of  the  faid  city,  by 
the  chamberlain  thereof,  of  or  in  any  other  company  thai) 
the  faid  qompany  of  butchers  j  provided,  that  every  perfon, 
|iot  being  already  free  of  the  city,  but  intided  to  the  free- 
4om  of  any  other  company,  by  patrimony  or  iervice| 
(hould  be  admitted  into  this  cpmpany  of  butchers,  on  pay- 
ment of  like  fine  or  fees,  as  were  ufually  paid  on  admiffion 
of  a  child  or  apprcntice/'-^Then  it  impofcd  a  fine  of  5I, 
on  any  perfon,  not  free  of  this  company,  who  fliould  uic 
the  trade  of  a  butcher. 

An  a(9:ion  having  been  brought  in  the  mayor's  court, 
jigainft  one  Godman,  to  recover  the  penalty  for  a  breach 
pf  this  bye  law,  he  brought  a  habeas  corpus  cum  causa, 
directed  to  the  mayor,  aldermen,  and  (heriffs,  command** 
Ing  them  to  bring  up  the  body  of  the  defendant,  together 
with  the  caufe. 

The  return  ftated  the  general  cuftom  of  London,  by 
which  the  mayor  and  aldermen,  with  confent  of  the  com- 
inonalty  in  common  counc^il  aflembled,  had  power  to  pro-  . 

yide 


OF   CORPORATIONS.  119 

vide  a  remedy,  if  any  ancient  cuftom,  hard  and  defe£Hve 
in  any  thing  newly  arifing,  wanted  amendment ;  then  the 
preceding  bye  law  and  the  breach  of  it  by  the  defendant. 
The  principal  objefiiion  taken  to  this  return  was,  that  the 
bye  law  was  in  riftraint  oi  trade  \  that  no  cuftom  enabling 
the  court  of  common  council  to  make  a  bye  law  in  reftraint 
of  trade  was  fet  forth  in  the  return;  and  that  the  general 
cuftom  to  make  bye  laws  was  not  fufl|cient  to  fupport  fuch 
a  bye  law  as  this. 

Lord  Mansfield  faid,  ^^he  fuppofed  it  was  a  flip  in  the 
return  \  that  he  did  not  take  the  objeAion  to  be,  that  it 
was  necefiary  there  fhould  be  a  particular  cuftom  to  make 
z  particular  hy^  lawj"  but,  *'that  there  was  no  'general 
power  fhewn,  under  the  cuftom,  to  lay  fuch  a  reftraint  on 
trade.'' 

This  bye  law,  he  faid,  was  a  re/lraint  of  tr^Cy  and  not 
a  mere  regulation  of  it;  the  preamble  did  not  pretend  it  to 
be  made  to  regulate  the  trade,  but  merely  for  the  benefit  of 
the  butchers'  company.  It  was  founded  on  the  general 
power  of  making  bye  laws  in  the  city  of  London.-*^But 
under  this  ^^w^r^/ power,  it  was  certain  a  bye  law  could 
not  be  made  to  reftrain  trade  :  and,  by  the  general  cuftom 
of  London,  every  freeman  might  exercife  any  trade  without 
being  of  a  particular  company,  which  this  bye  law  required 
him  to  be,— On  Wannel's  cafe,  he  obferved,  that  there 
was  not  ^  full  ftate  of  the  pleadings  giveain  the  report; 
but  that  it  appeared  the  return  ftated,  that  no  perfon  could 
be  a  freeman  of  the  city  till  he  was  a  member  of  one  of  the 
fraternities ;  that  it  then  ftated  a  power  to  make  bye  laws; 
but  how  that  power  was  fet  out,  did  not  appear.-^And 
as  this  power  to  make  bye  laws  to  re/frain  trade  was 
not  fet  out  in  the  prefent  cafe,  the  court  could  not  pre- 

I  ^  fume 


I20  THE    LAW 

fume  it,  from  any  printed  book,  or  in  any  other  way  what«- 
cver  (a). 

A  FEW  years  afterwards,  the  (ame  bye  law  came  in 
queftion  on  the  return  to  a  mandamus,  dire£led  to  the  1 

chamberlain  of  London,  commanding  him  to  admit  WiU 
liain  Cope  to  the  freedom  of  the  city ;  he  having  ferved  an 
apprenticefhip  to  John  Cope,  a  freeman  of  the  company  > 
of  cloth  workers,  and  afterwards  been  duly  admitted  to  the 
freedom  of  that  company. 

The  return  fet  forth,  that  there  were  feveral  guilds, 
companies,  and  fraternities  within  the  city,  which  had  ufed, 
and  ought  to  have  the  fuperintendance,  cprredtion,  and 
government  of  the  feveral  perfons  ufing  and  exercifing 
the  feveral  arts,  trades,  myfteries,  and  manual  occupations 
belonging  to  fuch  feveral  guilds,  companies,  and  fraterni- 
ties, in  the  ufe  and  exercife  of  fuch  arts,  trades,  myfteries, 
and  manual  occupations  within  the  city  and  liberties ;  and 
thaf  thefe  guilds,  &c.  and  the  men  of  the  fame,  were  un- 
der the  order,  government,  and  regulation  of  the  mayor 
and  aldermen  for  the  time  being,  with  the  commonalty  of 
the  city  in  common  council  aflembled.— It  then  ftated  the 
cuftom,  which  requires  every  perfon,  at  the  time  of  his 
admiilion  to  the  freedom  of  the  city,  to  be  free  of  fome  one 
of  the  companies ;  and  in  a  fubfequent  part,  the  general 
cuftom  by  which  the  mayor  and  aldermen,  with  the  con- 
tent of  the  common  council,  had  been  accurflomed  to  pro- 
vide a  remedy,  where  any  <:uftom  which  had  obtained  in 
the  city  was  inconvenient  or  defeftive,  or  where  any  thing 
newly  arifing,  fpr  which  no  remedy  had  already  been  or- 
dained, wanted  amendment. — It  then  ftated  that  the  com- 
pany of  butchers  was  one  of  the  companies  before  men- 

{d)  Hanrifon  v.  Go4man.    i  Bur.  i*,  x6,    Mich.  30  G  «. 

tioned ;   . 


...^ 


OF    CORPORATIONS.  121 

tioned;.and  then  the  bye  law  in  queftion,  with  the  fame 
.preamble  as  in  the  former  cafe* — The  return  then  ftated, 
that  the  profeciitor  had  been  educated  as  an  apprentice  in 
the  trade  of  a  butcher,  and  at  the  time  of  his  appli- 
cation to  be  admitted  to  the  freedom  of  the  city,  exercifed 
that  trade,  but  that  he  had  not  taken  his  freedom  in  that 
company ;  and  affigned  this  as  the  reafon  why  the  cham- 
berlain refufed  to  admit  him. 

The  principal  objedlion  taken  to  the  bye  law  in  the 
prefent  cz(€j  was  that  it  effentially  varied  the  conftitution 
of  the  city,  by  confining  a  man  to  take  his  freedom  in  a 
particular  company,  whereas  before  he  might  have  taken 
it  in  any  company  he  pleafed. — It  was  like  wife  contended, 
as  in  the  former  cafe,  that  it  reftrained  trade ;  and  that  the 
return  did  not  fet  forth  a  cuftom  fufHcient  to  juftify  fuch  a 
reftraint :  but  it  was  granted,  that  if  the  cafe  of  Wannel 
was  to  be  confidered  as  an  authority  in  point,  the  bye  law 
could  not  be  impeached.  ' 

The  court  were  upanimoufly  of  opinion,  that  Wan- 
nel's  cafe  was  an  exprefs  authority,  and  that  the  bye  law 
in  queftion  did  not  alter  the  conftitution  of  the  corpora- 
tion, but  reftored  it  to  what  it  muft  originally  have  been ; 
and  that  it  regulated  trade  and  did  not  rejlrain  it  (<?). 

It  is  remarkable,  that  no  notice  w^s  taken,  either  by 
the  counfel  or  the  court,  of  the  fprmer  cafe  on  this  bye  law; 
and  it  feems  almoft  impoffible  to  reconcile  the'  two  de- 
cifions :  in  the  firft  cafe,  the  bye  law  was  held  bad,  on  the 
ground  that  it  was  in  rejirdint  of  trade,  and  not  fupported 
by  any  cuftom ;  and  the  cafe  of  Wannel,  which  was  cited 
as  an  authority  in  favour  of  it,  was  fuppofed  to  have  con- 
tained the  allegation  of  a  cuftom  which  did  not  appear  in 
the  printed  report :— in  the  fecond  cafe,  the  court  conTider 

{a)  Rex  v.  Harnfon.    3  Bun  1321.    Trin.  zG.  3. 

the 


122  THE    LAW 

the  bye  law  as  made  in  regulation  of  trade,  and  therefore  not 
requiring  a  cuftom  ta  fupport  it;  and  they  admit  thcjcafc 
of  Wannel,  as  ftated  in  the  printed  report,  to  be  a  direct 
authority,  viythout  having  recourfe  to  any  circumftance 
not  appearing  there.  The  return  of  the  chamberlain,  in 
the  fecond  cafe,  is,  indeed,  more  full  than  that  of  the  mayor 
and  aldermen  in  the  firft »  but  no  cuftom  appears  in  the 
former  any  more  than  in  the  latter  to  juftify  a  bye  law  in 
rejiraint  of  trade ;  and  had  the  court  now  conAdered  the 
bye  law  on  its  own  merits,  in  the  fame  light  in  which  they 
confidered  it  on  the  former  occaiion,  they  muft  neceilarily 
have  given  the  fame  judgment, 

I  APPREHEND,   that  the  bye-law  in  queftion  has  no  re* 

lation  to  trade,  either  as  a  regulation,  or  as  a  reftraint ;  but 

that  it  relates  folely  to  the  coriftitution  of  the  corporation; 

<  that  it  is  not  an  alteration  of  that  conftitution,  but  a  regula* 

tion  of  it  J  and  that,  therefore,  the  laft  decifion  is  right. 

A  BYE  LAW  may  regulate,  in  a  reafonable  manner,  the 
exercife  of  a  right,  or  the  internal  affairs  of  a  corporation, 
or  the  conduft  of  its  members,  or  thie  mode  by  which  a 
perfon  is  to  be  admitted  to  the  exercife  of  a  right  to  which 
he  has  an  inchoate  title ;  but  it  cannot  take  away  a  right, 
orimpofeany  unreafonable  reftraint  on  the  exercife  of  it, 

A  BYE  LAW,  "  that  no  tenant  of  a  manor  fliall  put  his 
flieep  upon  the  common  before  a  certain  day  ;"  or  *^  that 
no  one  Ihall  put  his  fheep  in  a  particular  part  of  the  com- 
mon," has  been  held  good,  on  the  ground,  that'it  is  only 
a  reafonable  regulation  {a).  But  a  bye  law,  in  general 
terms,  "  that  no  one  fliall  put  flieep  on  the  common,'*  or 
^*  that  no  one  {hall  put  his  beafts,  called  fleers,  upon  the 
common,  if  they  be  more  than  a  year  old,"  has  been  held 
bad,  becaufe  it  entirely  takes  away  a  right  (^), 

{a)  1  Rol.  Abr.  365,  366.    Cro.  Car.  497. 

(^)  I  Anderf.  234.    iLeon.  »90.    3  Leon.  165.    Dalif.  95, 103. 

By 


OF     CORPQRATION  S,  123 

By  the  cuftom  of  the  city  of  London,  every  freeman 

following  the  profeffion  of  a  furgeon,  within  the  city,  bad 

*   a  right  to  take  apprentices  pf  the  age  of  fourteen  years,  or 

upwards,  for  the  fpace  of  feven  years ;  and  fuch  apprentices 

were  accuftomed  to  be  admitted  and  bound,  in  the  prefencf 

'  or  with  the  confent  of  the  mafter  and  wardens  of  the  com- 
pany of  furgeons,  or  fome  of  them. 

The  company  made  a  bye-laW,  **  That  no  member  of 
the  company  fhould  take  into  his  fervice  any  perfon,  as  his 
apprentice,  to  be  inftrufted  in  the  art  or  fcience  of  furgery, 
for  any  Ihorter  time  than  feven  years;  which  perfon 
Ihould  underftand  the  Latin  tongue,  his  ability  in  which 
"Ihould,  before  he  fhould  be  bound,  be  tried  by  the  govern 
nors,  or  one  of  them  \  and  that  every  freeman  of  the  com** 
pany,  or  foreign  brother,  fhould,  within  one  month  neict 
^ter  his  entertainment  of  any  perfon,  in  order  to  being  his 
apprentice,  prefent  fuch  perfon  before  the  governors,  or 
two  of  them,  at  a  court  to  be  by  them  held  5  and  there 
bind  fuch  perfon  to  him  before  the  faid  governors,  by  in- 

•  denture,  on  pain  of  forfeiting  20I.  and  that  the  clerk  of  the 
company  Ihould  npt  bind  any  perfon  who  had  not  been  f6 
prefented  and  examined,  on  pain  of  forfeiting  20I.  and  be- 
ing liable  to  bq  removed  from  his  office  5  and  that  no  ap^ 
prentice  fhould  be  turned  over  from  one  mafler  to  another, 
but  at  a  court,  in  the  prefence  of  the  -mafler  and  war* 
dens,-or  one  of  them."        » 

The  court  held  this  bye  law  to  be  fo  manifefHy  good, 
that  there  was  nQ  occalion  to  hear  an  argument  in  its  far- 
vour(^). 

By  a  bye  law  of  the  city  of  Durham,  made  for  the  pur^ 
pofe  of  preventing  perfons  from  being  made  free,  who  had 

{a)  Rex.  V.  the  mafter,  &.c,  of  the  cpmpany  of  furgeons,  London. 
^  Bur.  ^92,  897. 

«  not 


1 24  THHLAW 

not  a  title  or  right  to  the  fi^eedqm  of  the  city  and  borough  of 
Framwelgate,  which  is  under  the  ianic  government  as  the 
city,  it  was  ordained,  ^*  That  the  mayor,  one  or  more  al- 
derman or  aldermen  of  the  city,  and  the  wardens  and 
ftew^rds  of  the  feveral  refpe£tive  companies  for  the  time 
being,  (hould,  from  thenceforth,  meet  at  the  guildhall  at 
four  ftated  times  in  every  year;  and  that  every  perfon, 
who  ihould  thereafter  be  a  candidate  for  admifHon  to  the 
freedom  of  the  city  and  borough,  (hould  be  then  and  there 
lalUdy  at  three  of  the  faid  feveral  meetings,  before  fuch  his 
admittance  to  be  a  freeman,  and  fhould  be  approved  by  the 
mayor,  and  one  or  more  alderm^  or  aldermen,  and  the 
wardens  and  ftewards  of  the  company  or  fraternity,  of 
which  be  was  to  be  admitted  a  freeman,  or  by  the  majority 
c^fuch  perfons  compofing  the  meeting^'* 

At  the  fame  tinie  another  bye  law  was  made,  impofing 
a  penalty  of  30!,  on  any  warden,  ileward,  or  pther  freeman, 
who  Ihould  confer  the  freedom  of  the  city,  or  of  any  com- 
pany therein,  contrary  to  the  firft  bye  law :  and  a  third, 
impofing  a  like  penalty  on  any  mayor  who  fhoiild  fwear 
any  perfon  who  had  not  actually  ferved  feven  years  as  aa 
apprentice  with  a  freeman  of  aay  of  the  fajcj  companies,  or 
who  ihould  not  be  jufUy  intitled  to  his  freedom  by  ancient 
ufage  and  cuftom. 

These  bye  laws  were  held  to  be  good,  on  the  princi- 
ple, that  they  were  not  againft  any  law  of  the  land;  that 
they  did  not  impofe  any  reftraint  on  trade,  but  introduced 
a  reafonable  regulation,  well  calculated  to  prevent  perfons 
from  being  unduly  made  free,  who  were  not  intitled  by 
birthright,  fervice,  or  purchafe,  by  provi^ding  a  method 
for  previoufly  examining  into  the  rights  of  the  candid 
dates  {a). 

"{a)  Green  v.  mayor  of  Durham,  1  Bur.  127, 135, 

A  BYE 


OF    CORPORATIONS.  12^ 

A  <YE  LAW,  that  a  common  councilman,  where  .the 
place  of  common  councilman  is  for  life,  fhall  notvoloiv- 
tarily  refign,  has  been  held  good{^)* 

Of  all  the  bye  laws,  which  have  been  "the  fubjeS  of  dit- 
cuffion  in  the  courts  of  Weftminfter  Hall,  thofe  which  af- 
feft  trade  make  the  moft  confpicuous  figure,,  and  fuch  a 
jealoufy  of  every  thing  that  feems  to  have  the  leaft  ten- 
dency to  infringe  on  the  freedom  of  it,  prevails  on  all  oc- 
cafions,  that  objedlions  are  frequently  taken  to  bye  laws, 
as  tending  to  rejirain  trade,  which  have  not  the  leafl:  rela- 
tion to  it. 

At  common  law,  any  man  might  exercife  any  trade  or 
profeffion  he  pleafed,  without  limitation  or  controul :  and 
there  are  a  number  of  ftatvtes  in  the  early  part  of  our  hii^ 
tory,  made  in  proteftion  of  that  general  liberty. 

By  the  jpth  chapter  of  Magna  Charta,  "  free  liberty  of 
coming  in,  going  out,  and  continuing  in  England^  and  of 
buying  and  felling  without  any  manner  of  evil  tolts,  ac- 
cording to  the  old  and  rightful  cuftoms,  except  in  time  of 
war,*'  is  given  to  all  merchants,  except  to  thofe  that  were 
formerly  prohibited:  and  if  the  country,  from  which  thej 
come,  be  at  war  with  this  country,  they  are  to  be  attached, 
without  harm  to  their  body  or  goods,  till  it  be  known  how 
the  merchants  of  this  country  are  treated  in  theirs^  oa 
which  their  treatment  here  is  to  depend. 

By  9  £d«  J,  c.  i^  it  is  €na(Sted^  that  all  merchants, 
ftrangers,  or  denizens,  ihall  have  full  liberty  to  buy  and 
fell  the  feveral  articles  there  fenumerated^  and,  in  general, 
every  thing  vendible,  to  perfons  of  every  defcription,  with- 
out hindrance  from  any  perfon  whatever,  in  any  city, 
t)Orough,  town,  fea-port,  fair,  market,  or  elfewhere,  within 
&anchife  or  without,  except  enemies  to  the  King  or  realm. 

<4)  Lytw.  404.,  5. 

AiJii, 


126  thelaw 

And,  if  within  any  franchife,  any  one  Ihall  oomplain  to 
the  mayor  or  other  officer,  having  rule  within  fuch  fran- 
chiife,  and  fuch  mayor  or  other  ofiicer  (hall  refufe  remedy, 
ftnd  be  thereof  attainted,  the  franchife  (kail  be  forfeited ;  and 
the  officer  and  the  didurber  (hall  be  bound  to  reftore 
double  damages  to  the  party  grieved:  — if  fuch  difturbance 
be  in  a  place  where  there  is  no  franchife,  then  the  lord,  or 
his  bailiff  or  conf^able  being  prefent  (hall  do  right,  or  being 
attainted  of  refufal,  (hall  forfeit  double  damages  to  the  party 
plaintiff:— and,  in  both  cafes,  the  difturbers  (hall  have  one 
year's  imprifonment,  and,  neverthelefs,  be  ranfomed  at  the 
King's  wiH. 

It  is  declared,  by  the  fame  ftatute,  that  thefe  provifions 
Ihali  hold  good,  notvfithftanding  charters  of  franchife 
granted  to  any  city,  borough,  town,  port  of  the  fea,  or 
other  places  within  the  realm,  and  notwithflanding  ufage 
or  cuftom,  or  any  judgment  given  on  fuch  charters, 
ttfages,  or  cuftoms,  which  are  all  declared  to  be  of  na 
effedi,  fo  /ar  as  they  are  in  oppofition  to  this  ftatute. 

By  14  Ed.  3,  c.  2,  in  confirmation  of  the  great  charter, 
the  King,  at  the  requeft  of  the  prelates,  earls,  barons,  and 
commons,  grants  for  himfelf,  his  heirs  and  fucce(rors,  that 
all  merchants  denizens  and  foreigners,  except  enemies, 
might,  without  let,  fafely  come  into  England  with  their  ^ 
goods  and  merchandizes,  and  fafely  tarry  and  fafely  return, 
paying  the  cuftoms,  fubfidies,  and  other  profits  reafonably 
due  5  fo  always,  that  franchifes  and  free  cuftoms  reafonably 
granted,  by  the  King  and  his  anceftors,  to  the  city  of  Lon- 
don, and  other  cities,  boroughs,  and  towns,  (hould  be  to 
them  {^evcd. 

By  25  Ed.  3,  ft.  4,  c.  2,  that  of  the  9  Ed.  3,  is  repeated 
and  enforced,  and  it  is  provided  in  terms  more  particularly 
guarded,  that  every  merchant  or  other,  as  -well  alien  as  dc- 

nizen9 


OF    CORPORATIONS.  1 27 

nizeti)  of  what  oondition  foever  he  be,  who  fliall  bring 
wine,  &c  to  the  city  of  London,  or  other  cities,  boroughs, 
towns,  or  fea  ports,  may  freely,  and  without  challenge  or 
impeachment  of  any,  fell  in  grofs  or  retail^  or  by  parcels  at 
his  will,  to  all  manner  of  people  that  will  buy  the  iame, 
notwithftanding  any  franchifes,  grants,  or  cuftoms  ufed,  or 
other  thing  done  to  the  contrary.— And  the  reafon  given 
for  this  ordinance,  by  the  legiflature,  is,  that  fuch  ufages 
and  franchifes  are  contrary  to  the  common  good  of  the 
King  and  his  people. 

By  37  Ed.  3,  c.  5,  complaint  is  made  of  the  mifchiefis 
which  had  ariien  from  merchants  purchafmg  various  kinds 
of  goods,  while  the  market  was  full,  and  afterwards  felling 
at  high  prices;  to  remedy  which, Jt  is  enaftcd,  that  no 
merchant  fliall  deal  in  more  than  one  commodity.— By 
c.  6.  the  fame  reftraint  is  impofed  on  handicraft  trades : 
but  the  very  next  year,  that  part  which  relates  to  mer- 
chants  is  repealed  (^),  and  full  liberty  given  them  to  deal  in 
what  merchandize  they  pleafe. 

The  ftatute'of  2  R.  2,  c.  1,  after  reciting  the  9  Ed.  3, 
and « 25  Ed.  3,  before  mentioned,  and  complaining,  that, 
notwithftanding  thcfe  ftatutes,  merchants  ftrangers  and 
others,  were  gfevipufly  opprefled  by  the  citizens  and  bur- 
gefles  of  different  cities  and  boroughs,  gives  free  liberty  to 
merchants  aliens  and  denizens,  to  buy  and  fell  in  grofs  and 
by  retail,  as  well  in  the  city  of  London,  as  in  all  cities, 
boroughs,  ports  of  the  fea,  fairs,  markets  and  other  places 
within  the  realm,  certain  articles  enumerated  (Z>),  and  other 
fuch  fmall  wares : but  it  orders,   "  that  all  manner  of 

(^)  38  Ed.  3,<:.  2. 

{hi)  Corn,  tiefh,  fifh,  and  all  mariner  of  other  visuals,  and  alfo  all 
manner  of  fpiceries,  fruit,  fur,  and  all  manner  of  fmall  wares,  asiilk, 
gold  wire,  or  filvcrwire,  covcrchiefs,  and  other  fuch  fmall  ware. 

wines, 


128  THE     LAW 

wines,  as  well  fwcet  as  other,  fliall  be  fold  by  fuch  ftran- 
gers  only  in  grofs,  and  not  by  retail,  in  eities,  boroughs, 
and  other  towns  franchifed;"  and  confines  the  liberty  of 
felling  them  by  retail  to  the  inhabitants  and  freemen. 

With  refpefk  to  fuch  articles  as  the  ftatute  defcribes, 
under  the  denomination  of  great  wares  (a)^  it  gives/uU 
liberty  to  every  perfon,  as  well  alien  as  denizen,  to  fell  them 
in  grofs,  as  well  in  the  city  of  London,  as  in  other  cities, 
boroughs,  ports  of  the  fea,  towns,  fairs,  markets,  and  elfe- 
where  through  the  realm,  within  franchife  and  Without; 
but  confines  the  liberty  of  felling  them  by  retail  to  the  in- 
^  habitants  and  freemen :— merchants  ftrangers  or  denizens, 
however,  are  permitted  to  buy  and  fell  their  wools,  woolfels, 
wares,  cloths,  iron  and  other  merchandizes,  affairs  and 
markets  in  the  country^  in  grofs  or  by  retail,  as  they  might 
have  done  before. 

The  ftatute  1 1  R.  2,  c.  7,  recites  at  full  length  the  9  and 
25  Ed.  3,  confirms  them  in  every  particular,  and  in  gene- 
ral terms  declares  void,  and  repeals  all  ftatutes,  in  any  re- 
fpeft  contrary  to  thefe  two. 

The  ftatute  16  R.  z,  c.  i,  recites  the  9 and  25  Ed.  3,  and 
1 1  R.  2,  and  then  premifing,  "  that  thefe  ftatutes,  if  they 
fhould  be  fully  holden  and  executed,  would  extend  to  the 
great  hindrance  and  damage,  as  well  of  the  city  of  Lon- 
don, as  of  other  cities,  boroughs,  and  towns,  within  the 
realm,"  ordains  *'  that  no  merchant  ftranger  alien  fliall 
fell  or  buy,  or  merchandife  within  the  realm  with  another 
ftranger  merchant  alien,  to  fell  again,  and  that  no  ftranger 
merchant  alien  ftiall  fell  to  retail  within  the  realm,  nor  fiiall 
put  to  fale  any  manner  of  wares  or  merchandifes,  except 

{a)  Cloth  of  gold  and  filver,  illk,  fendali  napery,  linen  cloth,  can- 
vas, and  other  fuch  great  wares,  and  alfo  all  manner  of  other  great 
merchandifes,  not  above  exprefTcdy  whatfoever  they  be. 

livings 


OF    CORPORATIOKS.  I29 

livings  and  visuals,  andalfo,  that  alieAs  fliall  fell  wines  by 
whoJe  veflels,  and  fpicery  by  whole  veiTels  and  bales,  and  in 
no  other  manner;  and  tbat  no  manner  of  fpicery,  after  it 
fhall  be  brought  into  the  realm,  (hall  be  carried  out  of  it  by 
alien  or  denizen,  on  pain  of  forfeiture  ofthe  fame/'  But 
this  part,  prohibiting  the  exportation  of  fpicery  once 
brought  into  the  realm  on  pain  of  forfeiture,  is  repealed  by 
ft.  3  C.  I,  c.  4,  f,  27. 

By  3  H.  7,  c.  9,  a  bye  law  of  the  city  of  London9  **that 
iio  freeman  ihall  fell  his  wares  at  a  fiiir  or  market  out  of  the 
city,"  was  annulled :  and  by  12  H.  7,  c,  6,  a  bye  law  of 
the  merchant  adventurers  of  London,  *^  that  none  Ihould 
iell  or  buy  in  the  dominions  of  the  Duke  of  Burgundy/*. 
was  alfo  annulled  (a)  • 

With  refpe<a  to  handicraft  trades,  every  man,  previous 
to  the  57  £d.  3,  c.  6,  might  have  exercifed  whatever  trade 
he  pleafed,  and  as  many  trades  as  he  pleafed,  in  any  part  of 
the  kingdom,  except  in  thofe  corporate  towns  where  there 
jvas  an  immemorial  cufiom  impofing  fome  particular  re- 
flraint  (b) :  and,  though  by  that  ftatute-a-  man  was  confined 

to 

(a)  Vid.  I  Rol.  Abr.  363. 

(^)  The  only  judicial  opinion  we  find  againft  diis  general  freedom  of 
%ade  at  common  law,  is  that  of  Dodridge,  J  •  and  Sir  James  Ley,  C.  J .  of 
whom  the  former  faid,  he  was  not  of  opinion  that  all  trades  might  be 
equally  ufed,  by  any  body,  at  common  Ikw,  and  that  any  one  might 
ufe  what  and  as  many  trades  as  he  pleafed ;  for  that  God,  at  the  origi- 
nal creation  of  man,  had  ordained  one  man  to  one  trade  and  another  to 
another  |  that,  accotxlingly,  nature  had  difpofed  men  to  one  ti^e  moi« 
than  to  another  $  and  that  no  civil  republic  could  fubfift  without  dif« 
tln^on  of  trades :  the  chief  jufUce  fiiid,  that,  though  at  common  law,  a 
man  was  not  bound  to  uie  one  trade  more  than  another,  yet  there  was  a 
^  diftinftion  of  trades,  and  a  man  could  not  ufe  two;  and  of  this  he  men- 
tioned  a  notablerecord  in  die  time  of  H.  4,  when  Gafcoigne  was  chief  juT* 
tice  of  the  Klng*t  Bench :  a  vintner,  who  had  hfed  to  fell  wine,and  alfo  to 

Vol.  U.  a  ft^ 


IjO  THE    LAW 

to  the  exercife  of  one  partioilar  trade,  ye^  till  the  5  El. 
c.  4,  he  might,  without  any  preliminary  fervice  in  the  na- 
ture of  an  apprenticeihip,  have  pra^fed  any  trade  in 
any  part  oif  the  kingdom,  imder  the  iame' exception.— The 
judges,  on  many  occafions,  obferre,  that  unfkilfulnefs  in 
the  trade  which  he  pretends  to  practife,  is  a  fufficient 
puniflmient  to  the  tradefinan,  becaufe  upcm  his  (kill  de* 
pends  the  extent  of  his  employment  {a)i  and  where  any 
man,  who  employs  the  tradefinan,  receives  any  damage 
from  the  unfkilful  nuuiner  in  which  the  work  is  exe- 
cuted, dfe  common  law  has  provided  a  remedy  by  ac^ 
tion(^). 

Bt  5  El.  c.  4>  f.  5 1,  it  was  enaAed,  *^  that  after  the  firft 
day  of  May,  then  next  coming,  it  ihould  not  be  lawful  to 
any  peribii  or  perfons,  other  than  fuch  as  tbtn  lawfully 
ufed  or  exercifed  any  art,  myftery,  or  manual  occupation, 
Co  fet  up,  occupy,  ufe,  or  exercife  any  craft,  myftery,  or 
occupation,  then  ufed  or  occupied,  within  the  realm  of 
England  or  Wales ;  except  he  ihould  have  been  brought  uf^ 
therein^feven  years,  at  leaft,  as  an  apprentice^  in  confor* 
mity  to  the  provi(ions,of  former  fe£lions  of  the  flatute; 
nor  to  fet  any  perfon  to  work  iii  fuch  myftery,  art,  or  oc- 
cupation, being  not  a  workman  at  that  day,  except  he 
fliould  have  been  apprentice  as  aforefaid ;  or  elfe,  having 
(erved  as  an  apprentice  as  aforefaid,  he  fliouId  or  would 
become  a  journeyman,  or  be  hired  by  the  years   on  p^n 

gti^e  fupiiert  and  dinners,  and  fell  viAnals/was  indiQed^  conyi6bd,  and 
Ikied  t  He  confultcd  with  other  vintners,  and  toldthfm,  that  if  they 
would  gire  5L  to  Gafcoigae  all  would  be  well  \  and  he  a>lleaed  5U 
among  them  to  give  to  Oafcoignt,  who  having  intelligence  of  it,  cauied 
himtoi}eindiaedofth3talfo,andlle.watfined.    alRol.Rep«  39s* 

(«)  Vid.  a  Bulft.  191.  {b)  Vid.  i  Saund.  31*. 

that 


OF    CORPORATIONS.  Ijt 

that  every  perfon  doing  the  contrary  &ouid  forfeit  for 
every  default,  forty  ihillings  for  every  month." 

By  f.  40,  it  was  provided,  «'  that  nothing  in  this  afik 
Ihouid  be  prejudicial  or  hurtful  to  the  cities  of  London  and 
Norwich,  or  to  the  lawful  liberties,  ufages,  cuiloms,  or 
privileges  of  the  fame  cities,  for  or  concerning  the  having 
or  taking  of  any  apprentice  or  apprentices  j  but  that  the 
citizens  and  freemen  of  the  fame  cities  fhould  and  might 
take,  have  and  retain  apprentices  there,  in  fuch  manner  and 
form  as  they  might  lawfully  have  done  before  ^he  making 
of  thisftatute." 

As  previous  to  this  ftatute,  a  man  might  hkve  exercifed 
any  trade  he  pleafed,  in  any  part  of  the  kingdom  where 
there  was  no  f«/?<7»f  of  exclulion,  {o^fmce%\it  ftatute,  a  man 
who  has  any  where  ferved  an  apprenticefhip  to  any  trade^ 
may  exercife  that  trade  in  ^ny  corporate  town  where 
there  is  no  exclufiye  cuflom,  without  being  free  of  that 
town ;  and  a  bye  law  to  the  contrary  is  void  {a).  ' 

Of  bye  laws  which  affeft  trade,  a  diflinfHon  runs 
thrqugh  all  t)ie  books  between  thofe  which  impofe  a  re- 
ftraint  on  it,  and  thofe  which  introduce  a  reafbnaHe  regu- 
lation of  it ;  thofe  which  are  decided  to  be  of  the  firfl:  kind, 
are  uniformly  held  to  be  void,  and  thofe  of  the  latter  to  be 
good ;  but  it  is  not  dways  eafy  to  agree  with  the  courts  in 
their  decifions,  as  to  what  fliall  be  confidered  areflraint,' 
and  what  only  a  reafonable  regulation  of  trade. 

Of  thofe  bye  laws  which  are  in  reflraint  of  trade,  fome 
affed  the  condud  of  the  members  of  the  corporation,  and 
others  the  general  liberty  rf  the  fubjea,— Thofe  of  both 
kinds  are  void.    .  ' 

The  corporation  /of  merchant  taylors  made  a  bye  law, 
**  that  every  merchant  taylor,  member  of  the  company, 

(«}  II  Co.  54  a,  Lutw.  5$4- 

K  %  who 


132  THE    t  AW 

who  ihould  not  put  out  one-half  of  all  fuch  cloths  as  he 
ihould  put  forth  to  be  rowed,  ihor;i,  and  drefled,  10 fonu 
brother  ■of  the  company,  (hould  forfeit  to  the  u(e  <3t  the 
poor  of  the  company,  for  every  cloth  put  forth  to  be 
dreifed  contrary  to  the  meaning  of  this  bye  law,  the  fum 
of  I  OS.  to  be  levied  by  the  mailer  and  wardens,  by  diftrels 
or  otherwifc,  without  favour  or  cxcufe'*(tf).    This  bye 
law  was  held  void,  on  account  of  the  many  pernicious 
efFe^  it  tended  to  introduce :  if  the  company  had  a  power, 
by  a  bye  law,  to  order  the  half  of  the  cloths  to  be  given  to 
the  brothers  of  the  company  to  be  drefled,  fo  they  might 
order  the  whole ;  which  would  reduce  die  fubjedls  to  this 
extremity,  that  on  the  one  hand,  thofe  of  the  company 
who  had  cloths  to  drcfs,  could  have  none  drefled  but  at  the 
pleafure  of  the  clothworktrs  of  the  company,  at  their  own 
time  and  at  their  own  price ;  and  on  the  other  Hand,  that 
other  clothworkers,  not  of  the  company,  could  have  hardly 
any  work  at  all,  and  would,  of  confequence,  become  a 
burthen  to  the  public :  that  enhancing  the  price  was  a  per- 
nicious coniequence  of  fuch  a  bye  law  of  die  firft  magni- 
tude ;  for  that  he  who  has  the  fole  privilege  of  vending  or 
manuiafhjring  any*  particular  Commodity,  may,  by  railing 
the  price,  produce  a  fcarcity  whenever  he  pleafed ;  it  alfo 
prevented  the  work  from  being  fo  well  executed,  as  it  pre- 
vented competition  {b). 

The  company  of  filk  throwfters  made  a  bye  law,  "  that 
tio  man  who  was  not  an  afliftant  of  the  company  (hould 
keep  more  than  one  hundred  and  iixty  fpindles,  and  that 
an  afliftant  ihould  not  keep  more  than  two  hundred  and 
forty." — ^This  bye  law  feems  open  to  the  fame  kind  of 
.  objediions  as  the  laft ;  and  accordingly  it  was  objected, 

(tf )  Moore,  577.    1  RoL    Abn  364. 
(*)  Moore,  580,  587* 

that 


OF     CORPORATIONS.  I33 

that  it  was  in  reftraint  of  trade,  the  fpindles  being  the  fub- 
ftantial  implements  of  work ;  that  it  was  as  oppreifive  as 
a  law  would  be  which  fhould  reftrain  a  man  from  felling 
beyond  a  certain  quantity  of  cloth  within  the  year:  it  was 
anfwered,  that  convenience  was  a  matter  of  fa£t  which  de- 
pended on  evidence ;  that  this  was  rather  a  proper  difirim 
button  of  trade,  than  a  reftcaint  of  it  \  for  that  by  fuch  a 
regulation  every  man  would  have  fQme  employment,  and 
nothing  was  retrained  but  the  monopoly ;  that  it  was 
as  reafonable  a  regulation  as  the  limitation  of  the  number 
of  apprentices,  which  had  been  held  good.*- And  the  court 
is  reported  to  have  obferved,  but  with  what  reafbn  is  not 
very  clear,  "that  manufa£iure$  ^iStv^i  ftom  otherAnidcs^ 
for  that  here  all  muft  have  fomething  to  do,  otherwife  they 
would  be  left  to  ftarve"  (a). 

The  common  council  of  I^ondon  made  a  bye  law  for 
the  regulation,  as  it  was  pretended,  of  the  companies  of 
bricklayers  and  plaifterers,  the  purport  of  which  was, 
*  **  that  the  bricklayers  fliould  not  plaifter  a  partition  wall  of 
brick,  on  a  chimqey  piece,  with  lime  and  hair,  but  that 
with  lime  and  fand  they  might,  on  the  ground  that  plaif- 
tering  with  lime  and  hair  belonged  only  to  the  plaifterers.'* 
It  was  contended,  on  behalf  of  the  bricklayers  and  tylers, 
that  this  bye  law  was  void,  becaufe  it  belonged  to  their 
trade,  as  well  as  to  that  of  the  plaifterers,  to  plaifter  with 
lime  and  hair :  in  anfwcr  to,  this,  it  was  faid,  that  it  did 
not  appear,  by  any  thing  before  the  court,  to  which  of 
the  two  trades  this  belonged;  that  therefore,  it  was  to  be 
prefumed,  there  had  been  a  difpute  between  the  two  com- 
panies, which  the  common  council,  who  had  a  right  to 
determine,  had  decided ;  and  that,  therefore,  th«  court 
was  bound  by  their  determirtation ;  and  that  the  bye  law 

V 

(«)  1  Keb.  310.    1  Lev,  »*9,  cittd  Com.  Dig.  Bye  Law,  b.  J. 


IJ4  THE    LAW 

was  not  in  ^reftrainf,  but  ta  regulation  of  trade.  Several 
inftances  of  fimilar  bye  laws  having  been  held  good,  werie 
alfo  cited :  ^^  that  coblers  fhould  not  mount  boots  nor 
inake  golofhoes,  which  belonged  to  fhoemakers  j"  *^that 
archers  fliould  not  make  bows,  nor  bowyers  make  arrows ;" 
and,  "  that  brown  bakers  fliould  not  bake  white  bread,  nor 
white  bakers,  brown"  (a)* 

A  BYE  LAW  of  a  city  or  town,  "  that  no  freeman  fliouM 
take  diefon  of  a  ftranger  as  an  apprentice,  or  employ  as  a 
journeyman  any  man  not  free,"  has  been  held  void,  as 
tending  to  raife  a  monopoly,  and  confine  the  trade  to  foch 
as  have  been  born  or  educated  in  a  particular  place,  which 
is  a  confpiracy  againft  the  general  interefts  of  the  coun<- 

try{*). 

A  BYELAWofa  borough,  "  that  no  perfon  inhabiting 

dut  of  the  borough,  or  not  free  of  it,  fhall  expofe  goods  to 
fale  in  any  market  within  the  borough,  except  victuals  on 
market  days,"  is  void  for  a  iimilar  reafon  (c). 

The  taylors  and  clothworkers  of.  Ipfwich  were  incor- 
porated by  King  James  the  firft,  with  expreis  power  to 
make  reafotiable  bye  laws,  according  to  their  difcretion. 
Tor  the  good  rule  and  government  of  the  company:  they 
made  a  bye  law,  "that  no  perfon  exercifing  any  of  thefe 
trades,  within  the  town  of  Ipfwich,  fhould  keep  any  fliop 
or  chamber,  or  exercife  thefaidfacultiei^  or  either  of  them, 
or  take  an  apprentice  or  journeyman,  till  he  had  prefented 
himfelf  to  the  matter  and  wardens  of  the  faid  fociety,  for 
the  time  being,  or  fome  three  of  them,  and  ihould  prove 
that  he  had  ferved  feven  years  at  the  leaft  as  an  apprenticci 
and  before  he  ihould  be  admitted  by  them  to  be  a  fufficient 

(«)  %  Kol.  Rep*  391,  a,  cited  Com.  Dig.  Bye  Law,  b.  3. 
(b)  Vrd.  Moore,  411,  n.  5.62.    Carter,  ii3. 
{c)  Parry  v.  Berry,  Com.  Rep.  269, 

workman.'* 


OF    CORPORATIONS*^  I35 

workman.*'— It  was  held,  **  tiiat  this  being  a  reflxaint  be- 
yond what  the  ftatute  of  Elizabeth,  iaipofed,  was  againft 
imw,.  and  that,  therefore,  as  the  ftatute  had  not  reftrained 
him  who  had  ferved  as  an  apprentice  for  feven  years  from 
exercifing  the  trade  of  a  taylor,  the  bye  law  could  not  pro- 
hibit him  from  exercifing  his  trade,  till  he  had  prefented. 
himfelf  before  the  company,  or  till  they  allowed  him  to  be 
a  workman,  for  that  thefe  were  againft  the  liberty  and  free-: 
dom  of  the  fubjea,  and  enabled  the  old  and  rich  of  the 
fame  trade  to  opprefe  the  young  tradefmen,  by  delay  or  the 

extortion  of  money'*  {a). 

Queen  Elizabeth  made  a  corporation,  by  the  nam«  of 
Guardians  and  Fellowflup  of  the  Weavers  of  Newbury, 
and  gave  them  power  to  make  laws  confonant  to  reaibn, 
and  not  contrary  to  the  laws  and  ftsrt^tes  of  the  kingdom, 
and  by  the  fame  letters  patents,  ordained  for  herfdf,  her 
heirs  and  fucceffors,  that  none  (hould  exercife  the  trade  of 
weaving  within  the  town,  unlefs  he  were  firft  admitted 
thereto  by  the  guardians  and  fellowfliip  of  weavers  5  tiiey- 
afterwards  made  a  bye  law,  "  that  no  perfon  fliould  ufe  tfce 
art  of  weaving  within  the  faid  town,  unlefs  he  had  been  an 
apprentice  to  the  art  within  the  town,  and  had  ufed  it 
tiicre  by  die  fpacc  of  five  years  before  the  making  of  the 
bye  law,  or  were  admitted  by  the  guai*dians  and  Mlowfliip,. 
on  the  pain  of  20S,  per  month  j"  an  adion  of  debt  teivkig 
been  brought  for  the  recovery  of  a  penalty  under  this  bye 
law,  judgment  was  given  againft  the  plaintiffs  for  grofs, 
faults,  as  Hobart tells  us,  in  the  declaration:  but  be  adds, 
that  theworftfeult  was  in  the  law  itfelf,  becaufe  it  had  a 
tendency  to  exclude  even  apprentices  brought  up  witWn 
the  town  itfelf,  after  the  making  of  the  Jaw.— And  the  queU 
tion  principally  intended  to  be  agitated  in  this  cafe  was, 

{a)  Cafe  Qf  die  taylors  of  Ipfwicb,  x  i  Co.  SS>  54-  - 

^  .  ''whether 


136  THE    tAVr 

**  whether  a  new  corporation,  having  no  potrer  by  pre* 
icription  to  exclude  others,  cap  make  a  law  to  exclude  all 
perfons  from  ufing  an  art  or  trade  within  their  town,  to 
which  they  were  not  apprentices  within  the  Jarm  town^ 
though  they  may  have  ferved  an  apprenticefhip  to  it  elfe- 
where."  Hobart  obfcrves,  that  the  queftion  is  between 
the  particular  privileges  of  towns  and  the  general  liberties 
of  the  people,  a  queftion  which  well  merited  a  determina- 
tion, as  it  concerned  the  trading  interefts  of  the,  whole 
realm.  This  point,  however,  not  being  neceflary  for  the 
determination  of  the  cafe  before  the  court,  was  not  agitated 
on  the  bench.— 'But  Hobart  gives  his  own  opinion  clearly 
againft  the  exclufive  privilege,  and  Rolle  cites  this  opinion 
as  law  {a). 

The  inhabitants  of  Milton  and  Gravefend  prefcribed 
to  have  the  paflage  by  water  from  thence  to  JLrondon,  and 
to  make  bye  Iaw$  for  the  regulation  of  that  paflage.— They 
were  incorporated  in  the  tenth  year  of  Elizabeth,  by  the 
name ,  of  Portreve,  Jurats,  and  Inhabitants  of  Milton 
and  Gravefend,  with  power  to  the  portreve,  jurat?,  and 
twelve  of  the  inhabitants  to  make  bye  laws  for  the  regulation 
of  tfte  ferry ;  they  had  been  accuftomed  to  provide  water- 
men, fteerfmen,  and  rowers,  and  a  barge,  and  ufed  to  take 
of  every  perfori,  for  himfelfand  fardel,  zd,  and  when  the 
fare  at  this  rate  amounted  to  4s.  were  accuftomed  to  (ail.— 
Many  watermen,  however,  had  fo  far  infringed  this  privi- 
lege as  to  ply  and  take  in  poor  paffengers  before  the  barge 
was  furniflied  with  the  proper  number ;  the  confequcnce  of 
which  was,  that  the  barge  was  often  obliged  to  wait  longer 
to  have  its  number  completed  than  otherwife  it  would  have 
done,  and  thofe  who  went  in  it  were  delayed  of  their  paf,   • 

\a)  Noms  v.  Staps.    Hob.  2,0.    Brownl.  and  Gouldf.  48,  49- 
I  Kol.  Rep.  4,  ^,  cited  3  Salk.  ^^.    J  Rof.  Abr.  364. 

fagei 


OP    CORPORATIONS*.  I37 

£ige ;  to  remedy  this  inconvenience,  and  to  ailert  die  prl<» 
vilege  of  the  barge,  the  portrcve,  jurats,  and  twelve  of 
the  inhabitants,  made  a  bye  law,  "  that  if  the  owner  of 
the  tilt  boat,  or  any  other  waterman,  fhould  receive  any 
paffenger  who  fliould  be  willing  to  go  with  the  barge,  be- 
fore the  latter  fliould  have  completed  its  number,  he  ihould 
pay  to  the  portreve,  &c.  ad.  for  every  pailenger  fo 
taken.*' 

To  this  '  bye  law  it  was  objeded,  that  it  abridged  the 
liberty  of  other  watermen  not  employed  in  the  barge,  and 
their  power  of  earning  their  bread ;  and  that  the  paflenger 
who  might  wifh  to  prck:ure  a  fpeedier  conveyance  was  alfo 
injured,  for  that,  by  waiting  till  the  number  in  the  bargt 
was  complete,  he  might  lofe  the  tide,  unlefe  to  iave  it  he 
would  pay  an  extraordinary  price :  and  for  thefe  reafoas 
the  law  was  held  to  be  void  (a). 

In  mahy  corporations  there  are  many  cuftoms  which 
have  the  force  of  law,  and  on  which  bye  laws  arefome- 
times  founded,  and  fupported  as  good,  which  without  fuch 
foundation  would  be  void ;  and  on  this  principle  depend 
fome  diftindlions  mentioned  in  the  books,  with  refpe£t  to 
the  force  and  validity  of  fome  particular  bye  laws,  which 
are  good  in  London,  but  void  in  other  places.— London  is 
the  moft  ancient  corporation  in  the  kingdom,  and,  having 
from  the  remoteft  times  been  confidered  of  great  im- 
portance, a  greater  number  of  cuftoms  have  imperceptibly 
crept  in,  and  from  long  acquiefcence  been  coniidered  as  ob- 
ligatory there,  than  in  any  other  corporation  in  the  king-^ 
dom :— many  of  thefe  cuftoms  are  againft  the  general  free- 
dom of  trade  allowed  by  the  common  law ;  but  becaufe 

they  have  prevailed  from  time  immemorial,  a  bye  law 

«  / 

1 

{a)  Brownl.  and  Gouldf.  pt.  ^y  i77>  et  vid.  Str.  466,  9* 

founded 


138  THELAW 

founded  on  any  of  th^m  is  held  to  be  good,  which  in  «nf 
Miher  corpoUtion)  not  having  a  flmilar  cuftom,  wouM  be 
toid:  butif  any  other  corporation  have  a  fimilar  cuftooiy 
•n  which  a  bye  law  may  be  founded^  the  latter  will  be 
equally  binding  in  fuch  a  corporation  as  in  London;  for 
the  intrinfiC  power  of  making  bye  laws  is  the  fame,  and  of 
tbe  feme  extent  in  all  corpoTatipn^  conftituted  for  purpoTes 
of  the  fame  kind.— Thus  the  cuftom  of  foreign  boiegbt  and 
Jhif-eign  foki^  "  by  which  a  man  not  free  of  a  city  or  town 
J6  retrained  from  buying  or  felling  goods  to  other  foreigners 
widiin  the  city  or  town^^  under  the  penalty  of  forfeiture  of 
the  goods^"  has  been  held  good  in  the  dty  of  York  and 
the  city  of  Lincoln  (^),  though  a  bye  law  to  die  fameelfedt 
would  be  void  (^). 

Th£  true  diftinillon,  therefore,  feems  to  be  thi&i  that 
when  there  is  an  antecedent  ctiftom  in  LoExlon)  im  which 
a  bye  law  there  is  founded,  and  which  is  not  in  another 
place,  then  a  bye  law  will  be  good  in  London,  whkb^  ia 
another  pkce,  will  not  be  good :  but  when  bye  laws  in 
London  are  founded  only  on  their  general  power  by  cuilom 
10  make  b\e  laws,  and  are  not  explanatory  of  a  particular 
cuftom,  or  auxiliary  to  one  on  which  tj^y  are  founded ; 
then  fuch  bye  laws  can  bind  the  fufaje^ts  there  hi  no  other 
manner,  nor  in  any  higher  degree  than  the  fame  bye  laws 
would  bind  them  in  any  other  corporatiom  {c). 

It  is  on  this  principle  that  we  are  to  explain  the  feeming 
inconfifiency  between  the  caie  of  the  taylors  of  Ipfwich 
and  that  of  the  weavers  of  Newbury,  and  others  of  alimilar 
kind  on  the  one  hand,  and  that  of  Wagoner  and  others  of 
the  fame  defcription  on  the  other.— The  cafe  of  Wagoner 
was  thus :  — 

(fi)  Dyer,  279,  pi.  lo,    a  Rd.  Abr.  202. 

(fi)  Vid.  antf,  ^.  110.  {c)  6ki»nw,  37*,  «rg«cn|b. 

An 


OT    CORPORATIONS,  IJJ 

An  habeas  corpus  .was^direfbd  to  the  mayor,  aldermeni 
and  fheriffs  of  London,  commanding  them  to  bring  up  the 
bodf  of  Wagoner,  who  had  been  arrefted  in  Londoni 
and  remained  in  their  cuftody,  with  the  caufe  of  his  arreft 
and  detainer,  , 

They  returned  the  general  cuftom,  by  which  the  com«. 
mon  council  uied  to  make  laws  for  the  remedy  of  defe^ 
of  ancient  Cttftoms,  and  of  the  inconvenrencies  proceedii^ 
from  things  newly  arifmg  within  the  city :  then,  that  b|r 
virtue  of  this  jpower^  they  haEd  made  a  bye  law,  by  ^hich^ 
after  reciting  by  way  of  preamble^  **  that^  by  the  anoknt 
charters,  cufttirm^  franehifes,  and  liberties  of  the  ci'ty  of 
London,  confirmed  by  ftindry  «5te  of  parliament^  no  per* 
fon,  not  being  free  of  the  city  of  London,  ihight  or  ongfhi 
to  fell  or  put  to  faleany  wares  or  merchandizes  wilJhm  the 
iaid  city^  or  ifhe  liberties  of  the  ^me,  by  retail,  6r  keqi 
any  open  or  rnward  (hop,  or  other  inward  place  or  roo^ 
fbrihew,  £ile^  or  putting  to  fale  of  any  wares  ormerchaii* 
dizes^  or  for  ufe  of  any  art,  <H:cup2tion,  myftery^  or  ^an^ 
dicraft  within  the  fame :''  then  reciting  the  confirmation 
of  their  cuftoms  by  Edward  the  third,  and  fever-al  bye«law$ 
which  they  had  made  at  fever al  different  times,  for  En- 
forcing the  obfervance  of  this  particular  cuilom,'and  *' tbat^" 
notwithftandihg  thde,  "  feveral  ftrai^rs  to  the  liberty  6f 
the  city,  not  regarding  the  faid  ancient  charters,  franchife% 
cuftoms,  or  liberties  of  the  faid  city,  and  a(!^s  and  or-dinances 
theretofore  made  according  to  the  faiii6,  but  wholly  -in- 
tending their  private  profit,  had  of  late  years  devifed  and 
pra£kifed,  by  dll  fmifter  and  fubtle  means,  how  to  defraud 
the  faid  charters,  liberties,  cuftoms,  good  orders,  and  or- 
dinances, and  to  that  end,  did  inwardly,  in  private  and 
fecret  places,  ufually  and  ordinarily  fl>ew,  fell,  and  put  to 
^e  their  wares  and  merchandtz.es,  and  ufe  arts,  trades, 

occupations, 


I4O  THE     LAW 

occupations,  myfteries,  ahd  handicrafts  within  the  faid 
city  and  liberties  of  the  fame,  to  the  great  detriment  and 
hurt  of  the  freemen  of  the  faid  city,  who  paid  lot  and  {cot, 
bore  offices,  and  underwent  other  charges,  which  ftrangers 
and 'others  not  free  were  not  chargeable  withal,  nor  would 
perform  ;**  it  was  ena6led,  "  that  no  perfon  whatever,  not 
being  free  of  the  city  of  London,  fhould,  at  any  time  there- 
after, either  direfUy  or  ihdire£Uy,  by  himfelf,  or  by  any 
other,  (hew,  fell,  or  put  to  fale,  any  wares  or  merchan- 
dizes by  retail,  MHthin  the  faid  city,  or  the  liberties  or  fub- 
urbs  of  the  fame,  under  the  penalty  of  5I.  for  every  time 
that  fuch  perfon  fliould  (hew,  fell,  or  put  to  fale  any  vrares 
or  merchandizes  by  retail  within  the  faid  city,  liberties,  or^ 
fuburbs/'  and  further,  ^^that  no  perfon  whatever,  not 
being  free  of  the  city  of  London,  (hou}d  diredUy  or  indi- 
redUy,  by  himfelf  or  any  other,  keep  any  (hop  or  open 
place  whatever,  inward  or  outward,  for  (hew  or  putting  to 
fale  of  any  wares  or  merchandizes  whatever  by  way  of 
retail,  or  ufe  any  art,  trade,  occupation,  myftery,  or 
handicraft  whatever,  within  the  city  or  fuburbs,  under  a 
like  penalty  of  5I.  for  every  offence/' 

The  return  afterwards  ftated,  that  James  Wagoner, 
not  being  a  freeman  of  the  city,  ufidthe  manual  occupation 
of  a  tallow  chandler,  againft  the  true  intent  of  the 
bye  law^  and  affigned  this  as  the  caufe  of  his  arreft  and 
detection. 

The  court  refolvcd,  that  the  cuftom  fet  forth,  on  the 
whole  matter  difclofed  in  the  return,  was  good ;  and  that 
the  bye  law  founded  on  it,  as  alleged  in  the  return,  was 
alfb  good  s  and  a  diftin<Slion  was  made  httwetnfach  SLCu/fom 
within  a  city  or  borough,  and  a  charter  granted  to  either 
of  them  to  the  fame  effed ;  that  the  cuflpm  was  good,  but 
the  grant  void^  and  that  therefore  no  corporation,  within 

time 


aP    CORPORATIONS.  I4I 

lime  of  memory,  could  have  fuch  a*  privilege,  but  by  ad 
of  parliament  (^ ), 

**  But  the  court  took  advifement,'*  fays  Lord  Coke, 
"  on  one  part  of  the  return,  by  which  it  was  averred,  that 
James  Wagoner  ufed  the  manual  occupation  of  a  tallow  '' 
chandler,  and  did  not  (hew  that  he  fold  any  candles ;  for 
that  if  he  made  them  for  his  own  ufe,  without  felling  for 
gain,  he  might  well  do  it,  as  every  one  may  bake  or  brew 
for  his  own  uie,  without^felling  bread  or  beer :''  but  Lord 
Coke  gives  his  own  opinion  in  thefe  terms :  ^^  it  feems  im- 
plied  by  the  faid  averment,  that  it  is  his  trade  by  which  he 
lives,  and  not  merely  that  he  makes  candles  for  his  own 
uie ;  for  it  is  not  properly  faid,  that  one  ufes  a  manual  occu-- 
pation^  when  he  makes  no  more  than  for  himfelf,  as  he 
who  brews  or  bake3  for  his  own  ufe,  cannot  be  properly 
faid  to  ufe  the  manual  occupation  of  a  brewer  or  baker"(^}. 
It  appears,  however,  by  the  report  of  the  fame  cafe  in 
another  book,  that  the  objedion  prevailed,  and  that  Wa- 
goner was  difcharged  (r). 

A  CUSTOM  in  London,  **  that  nojlranger  fhall  inter- 
meddle, in  London  or  Southwark,  with  the  trade  of  the 
company  of  weavers  in  London,  the  company  being  acpr- 
poration  by  prefcription,"  has  been  held  good ;  but  it  has 
alfo  been  held,  that  it  is  no  infringement  of  this  cuftom9 
that  a  ftranger  ihould  buy  filk  or  linen  yarn,  or  wool,  and 
carry  it  to  the  country,  and  weave  it,  and  then  come  back 
to  London  ahd  fell  the  cloth  {£). 

A  BYE  LAW  founded  on  a  cuftom  of  this  kind,  muft  be 
confined  ftriftly  within  the  limits  of  the  cuftom,  both  with 
refpe(Sl:  to  the  place  of  jurifdi£tion  and  the  obje£l  of  the 
law*  ' 

(a)  Cafe  of  the  city  of  London,  8  Co.  121,  b.  I25»  a*  • 

(^)  Id.  129,  a*  (c)  2  BrowiiL  284. 

(^)  Corporation  of  wtavers  in  London  v.  Brown.     1  Cro.  803* 

Thus, 


Thus,  where  it  was  ftated,  <'  that,  within  the  ^ity  qf 
Exeter,  there  was,  from  time  immemorial,  a  cqilnpany  qf 
cordwainers,  incorporated  by  tl^e  naqae  of  Mailer,  War- 
dens, AiEftants,  and  Comnoonalty  of  Cqidwaiaers  of  the 
city  of  Exeter,  and  that  the  faid  m^ei:,  wardens,  and 
affiftants,  hfid  uki  for  all  the  f^id  time  to  make  bye  laws 
for  the  government  fnd  profit  of  the  laid  eampany,  and  to 
impofe  reafons^e  fines  on  the  breakers  thereof;"  and  fiirr 
ther,   **  that  the  mafier,  wardens,  and  a^ftants  had  or- 
dained, that  no  peffi^n,  burghs  or  /omignerj  not  being  a 
brother  of  the  laid  fooiety,  Ihquld  make,  fell,  or  oiler  tp 
iale,  or  pKKirure  to  be  fold   within  the  city  of  Exeter,  or 
the  c^uatjf  «r  liher^  thereof,  any  boots,  &c.  or  osjr  ptber 
wans  htlonging  U  the  faid  art ;"  this  bye  law  was  held  to 
be  beyond  the  cuftoip,  becaufe  the  latter  was  confined  to 
the  city,  but  the  former  extended  to  the  county  and  liber- 
ty :-«the  cuftom  was  only,  that  the  mafter,  wardens,  and 
•afliftantfi  had  uied  to  make  bye  laws  for  the  govern- 
ment and  profit  of  the  faid  fociety ;  but  the  bye  law  was, 
that  none  (bould  mah  any  boots,  &c.  which  was  more 
than  a  regulation  for  the  government  and  profit  of  the 
foqiety,  as  it  retrained  a  man  from,  making  boots  or  flioes 
for  his  own  ^iv^te  ufe. 

Again,  the  bye  law  extended  beyond  their  own  art,  for 
\i  ordained,  that  notie  ihould  do  any  thing  pertaining  to 
the  art  of  IhoenYakers ;  but  there  were  many  things  p^- 
taining  to  that  art,  for  every  thing  pertaimd  to  it,  which 
of  nf^ceflity  mull:  he  u&d  as  auxiliary  to  it,  and  without 
which  it  CQuId  not  be  ufod ;  as  leather,  which  muil  be  made 
by  the  tanner,  laAs  by  the  laftmaker,  &c.  {a)* 

This'  laft  objeSion,  however,  feems  not  to  be  well 
founded,  as  the  meaning  of  the  bye  law  >^as  clearly,  that 

{a)  Biidg.  I4X, 

no 


OF    CORPORATIONS.  J43 

fco  man  ihould  exercife  any  part-  of  that  bufinefs  which  4 
flioetnaker  muft  necefiarily  do  for  himfelf. 

In  the  cafe  of  the  mayor  and  commonalty  of  Colcheft^r 
againft  Goodwin,  which  wa$  an  action  of  :debt  to  recover 
the  penalty  of  a  bye  lavif,  the  plaintiflF^  ifet  forth  twp 
cuftoms,  9nd  two  bye  laws  founded  on  thofe  cuftpms.^^ 
The  firft  cuftom  was,  "  that  no  ftranger  artificer,  wh^ 
was  not.  free  of  the  faid  borough,  ihould  ufe  any  ar^ 
myftery,  oroocupation  within  the  &qie;"  tb^  fe^oad  Gufi- 
torn  was,  ^^that  the  bailiff  mi  commonalty,  before  the 
1 1  th  of  Charles  the  £rft,  and,  after  that  time,  by  a  charter 
from  that  King,  the  mayor  and  commonalty  ufed  to 
makd  reafonable  ordinances  and  bye  laws  about  tradefi- 

« 

m^n  and  artificers,  and  impofe  reafonable  fines  on  of* 
fenders/' 

The  firft  bye  law  was,  ^tbat  no  foreigner  who  ihouM 
be  commorant  in  the  borough  of  Colchefter,  or  liber<ties 
thereof,  (hould,  diredUy  or  indirect! y,  take  into  his  houfe 
to  ufe  any  art,  trade,  myftery,  or  occupation,  any  jour- 
neyman, apprentice,  or  poor  boy,  but  what  fbould  be 
refident  in  the  town  or  liberties  thereof,  and  difpofcd  by 
fte  mayor  and  commonalty,  or  common  council,  under 
-the  forfeiture  of  5s.  per  day  for  a  boy,  and  ^.  for  aa 
apprentice." 

Thb  fecond  bye  law  was,  "  that  no  foreigner  ihould  at 
anytime,  direSly  or  indireftly,  open  his  ihop,  or  fet  up 
his  trade,  within  the  faid  borough,  or  liberties  thereof,  till 
he  fliould  have  compounded  with  the  town  for  his  liberty, 
on  the  forfeiture  of  5s.  per  day"  {a). 

With  refpe<ft  to  the  fecond  cuftom,  the  whole  court 
agreed  that  it  gave  no  further  power  than  what  was  inci- 
dent to  every  corporation  without,  a  cuilom  :  but  two  of 

(a)  Carter,  6J. 

the 


144  THE     LAW 

the  judges,  Archer  and  Brown,  held,  that  the  firft  was  a  bad 
cuftdm :  their  reafens,  however,  as  given  In  the  report  of 
the  cafe  (a)y  are  not  very  &tisfa£lory :  they  admit  die  dif-* 
tin£Hon  between  fuch  a  reftraint  by  immeniorial  cuftom, 
in  a  corporation  by  prefeription,  and  by  a  bye  law  without 
a  cuftom  to  fupport  it  s  they  admit,  that,  in  the  former  cafe, 
die  public  exlsrcife  of  a  trade,  within  a  corporation,  might 
be  reftrained  as  to  foreigners  {b)  ;  and  they  admit,  that  in 
the  cafe  before  them,  the  cuftom  was  immemorial,  and  in 
a  corporation  by  prefcription :  but  they  make  a  frivolous 
diftinftion  between  the  words  **  trade"  and  **  myftery," 
and  fay,  that  in  die  cafe  before  them,  the  cuftom,  being  laid 
againft  ufing  any  mjfiery  in  the  corporation,  was  not  good, 
and  yet  they  agree,  ^  that  had  the  word  mjftery  hten  joined 
with  the  word  trade^  and  nafned  the  trade,''  it  would  have 
been  good*  Their  opinion,  too,  is  as  little  fupported  by  the 
cafes  (c)  cited  in  its  &vour,  as  by  the  accuracy  of  their 
reafoning. 

But  admitting  the  cuftom  to  be  good,  they  (ay,  that  the 
firft  bye  law  goes  beyond  it;  that  the  cuftom  limited  the 
reftraint  to  the  borough^  but  that  the  bye  law  extended  to 
the  liberties,  which  might  be  more  extenfive  than  the 
borough,  as  examples  of  which  they  mentioned  the  cafes  of 
the  cities  of  Coventry,  Gloucefter,  and  Lincoln,  and  the 
town  of  Grantham,  which  had  feveral  villages  within  their 
liberties,  by  the  King's  grant :  that  the  cuftom  was  farther 
exceeded  by  the  bye  law  in  this,  riiat  the  former  vjras,  **  that 
no  ftranger  artificer  fliould  u/e  any  myftery,  &c,"  whereas 

(a)  Carter  115, 117* 

{b)  Here,  and  in  fimilar  places,  the  word  **  foreigner**  means  no 
more  than  a  ftranger  to  the  corporation, 

(c)  Cafe  of  city  of  London,  S  Co.  125,  Norrit  v.  Staps,  Hob* 
azo,  taylors  of  Ipfwich,  1 1  Co.  5 3,  Dr.  3onlu>ni*i  cafe^  8  Co.  x>7« 

eke 


Oir    CORPORATION S»  I45 

the  latter  was,  *^  that  no  ftranger  artificer  ihould  tah  any 
journeyman^  i^c»  into  his  houfey  to  uffy  &c. 

They  objefted  further  "that -this  bye  law  not  only- 
related  to  taking  in  future  any. apprentice  or  boy^  but  to 
retaining  any  formerly  taken ;  fo  that  a  poor  boy  mtift 
either  break  the  covenants  of  his  indentures  of  apprentice- 
ship, or  break  the  bye  law :"— 'by  the  terms, of  the  bye  law, 
however,  as  given  in  the  report,  there  feems  no  founda<* 
tion  for  this  objeftion* 

,.  They  objeded,  likewife,  to  that  part  of  the  bye  law 
which  confined  the  employment  of  journeymen,  &c.  to 
fuch  as  fhould  be  difpofed  by  the  mayor  and  commonalty^  6t    - 
comMon  council -^ .  this,  they  faid,  might  force  a  fervant  on  a 
foreigner  who  was  taken  out  of  the  hofpital  \  that  even  out 
of  this  hofpital,  he  would  not  have  the  privilege  of  choofing 
the  perfon  he  preferred ;   and  he  might  have  one  put  upon 
him,  who  might  pry  into  his  fecrets,  . 
.  As  to  the  fecond  bye  law,  they  faid,  "  it  Was  againfl:  the 
liberty  of  the  fubjeft,  that  no^foreigner  artificer  fhould  ffet 
up  in  the  borough  without  compounding  for  his  liberty 
with  the  town ;  that  befide  being  againfl  the  liberty  of  the 
fubje(a,  it  "WTLS  infenjibky  that  he  fhodld  compound  with  the 
town.      Who  were  the  town  ?   not  the  corporation,  they 
faid,  for  that  was  compofcd  but  of  a  few  5  by  the  common 
law  the  defendant  might  freely  exercife  his  trade  i  and  a 
cuflom,  or  a  bye  law  to  reflrain  the  freedom  of  the  com** 
mon  law,  mufl  not  be  exprefled  in  tropes  and  figures* 

The  two  other  judges,  Tirrel,  J.  and  Bridgeman,C.  J. 
agreed  in  opinion,  that  the  cuflom,  as  here  fet  forth,  was 
like  that  in  Wagoner's  cafe,  and  therefo"re  good;  but 
Tirrelheld,  that  both  the  bye  laws  were  within  the  cuf- 
torn,  and  therefore  good;  whereas  Bridgeman  held,  that 
the  fecond  only  was  good,  and  the  firft  bad* 
Vol.  II.  L  Tirr«i# 


146  T  H  E    L  A  W 

TiftRSL  contiiidedy  that  if  the  cuftom  were  admitted  to 
be  good,  die  firft  bye  law  was  fo  too;  becaufe,  if  a  man 
might  not  let  up  a  tradjs,  he  might  aot  employ  any  odier. 
perfon  iA  it »  tfiat  the  ctiftom  impofed  a  general  reftraint, 
and  the  bye  law  was  a  qualifica^on  of  it ;  and  that  die  li- 
berty of  the  fubjed  was  not  reftrained  by  a  bye  law,  when 
that  was  warranted  by  a  cuftom :  it  had  been  laid,  that  the 
bye  law  exceeded  die  cuftom,  Becaufe  it  extended  to  the 
liberties ;  he  anfwered,  that  it  did  not  appear  there  were 
any  liberties  beyond  the  borough,  and  the  court  were  not 
bound  to  fuppole  diere  were :  it  had  been  objeded,  diat  this 
bye  law  reftrained  men  from  working  privately  in  dieir  fa- 
milies ;  this,  he  (aid,  was  not  the  real  fenfe  of  it ;  but  it 
appeared  to  be  the  intention  of  the  makers  of  it  only  to  re- 
ftrain  the  fetting  up  of  trades ;  and  if  die  defendant  had 
only  retained  a  workman  to  work  privately  in  his  family, 
be  might  have  pleaded  that  fpecdally. 

Bridgem  AN  held,  diat  this  firft  bye  law  viras  bad ;  and 
his  reafon  feems  to  be,  dioUgh  not  very  accurately  ex- 
prefled  in  the  report  fj),  that  it  was  beyond  the  extent  of 
the  cuftom. 

TiRREi.  and  Bridgemanbodi  agreeing,  that  theiecond 
bye  law  was  within  the  cuftom,  and  therefo/e  good ;  ob- 
served, that  it  was  not  fo  much  an  extenfion  as  a  relaxation 
of  die  cuftiom :  the  latter  reftrained  a  foreigner  from  exer- 
ciiing  a  trade  within  the  town ;  die  bye  law  enabled  him 
to  do  it  by  compounding  with  the  town :  it  had  been  (aid, 
that  opening  a  ihop  was  no  ofience,  and  it  did  not  appear 
dut  the  defendant  had  expofed  any  wares  to  fale  ;  to  this 
they  anfwered,  that  to  open  a  ihop  was  in  common  accep- 
tation to  let  up  a  trade,  and  that  to  fay  of  a  tradefman, 
^  his  (hop  was  (hut  up,*'  was  to  fay,  "  that  he  had  failed.^' 

(a)  Carttr,  121. 

.        .     In 


OF    CORPORATIONS.  I47 

la  anfwer  to  the  objedion,  that  it  was  infenfible  to  &y^ 
that  he  t^uft  compound  with  the  townj  he  obferved^  '^  the 
town"  could  not  be  taken  to  mean  the  walls  ol  the  towiH 
or  the  fpot  on  which  the  houfes  were  built,  but  miift  mean 
the  governing  part  of  the  inhabitants. 

In  ah  a£lion  on  the  cafe,  brought  by  the  mayor  of  Win* 
chefter,  the  declaration  ftated,  that  Winchefter  was,  from 
time  immemorial,  an  ancient  city,  and  that  there  had  been 
immemorially  a  cuftom  in  the  city,  that  it  ihould  not  be 
lawAil  for  any  perfon,  but  the  freemen  of  the  merchants 
guild  of  the  city,  to  ufe  or  exercife  publicly  within  the 
iamc  city,  any  myftery,  art,  or  inanual  occupation,  which 
had  been  ufed  during  all  the  time  aforelaid  (a)y  unle&  fuch 
perfon,  by  the  fpace  of  feven  years  before,  had  been  edu- 
cated as  an  apprentice  in  the  fame  city^  to  or  in  fuch 
myftery,  art  or  occupation,  or  were  thereto  otherwife  law- 
fully authorifed  according  to  the  cuftom  of  that  city :  then 
it  brought  the  defendant  within  the  defcription  of  perfons 
not  intitled  by  the  cuftom,  and  affigned  a  breach :   on  the 
general  ifiue  there  was  a  verdift  for  the  plaintiiF,  and  a  mo« 
tion  afterwards  made  in  arreft  of  judgment.*— -After  two 
arguments  at  the  bar,  in  which  Wagoner's  cafe  had  been 
relied  on  by  the  plaintiff's  council,  as  an  audiority,  that  fuch  . 
a  cuftom  in  general  was  good.  Holt,  C*  J.  faid,  '^  that  cafe 
was  of  fuch  a  cuftom  in  London,  but  be  would  be  glad  to 
fee  a  cafe,  where  fuch  a  cuftom  had  been  allowed  good  in 
any  other  borough  or  city;  that  this  point  had  not  been 
fo  well  fettled  as  had  been  aiTumed;  and  that  even  in  Wa- 
goner's cafe,  the  defendant  bad  been  difcharged  (A) :  that  the 
fubje£l  came  in  queftion  again  in  the  Common  Pleas,  in  the 

(4)  That  isy  immeniori^y. 

{hi)  Vid.  ante,  p.  141,  but  there  it  sippean  that  the  difcharge  was  oq 
account  of  a  fuppofed  defe^  of  the  averment  of  the  breach* 

La  '        ■•-    18  and 


tj^%  THE    LAW 

18  zni  19  Car.  2,  in  a  cafe  relating  to  die  town  of  Cot^ 
chefter  (tf),  ¥4iere  fuch  a  cuftom  was  laid,  and  a  bye  law 
founded  upon  it,  and  the  cafe  had  great  agitation,  but  W3S 
never  determined;  and  that  he  had  the  arguments  in  that 
cafe  in  a  report  under  Chief  Juftice  Bridgeman^s  own  hand. 
There  was  no  reafon,  he  £iid,  to  fupport  fuch  a  cuftom 
efpecially  to  give  the  corporation  an  a£tion ;   for  that  the 
exercifeofatrade,  though  by  a  perfon  not  qualified,  was 
no  prejudice  to  the  corporation :  all  perfons  were  at  liberty 
to  live  in  this  place,  and  their  (kill  and  induftry  were  the 
means  by  which  diey  were  to  fupport  themfelves ;   it  was 
therefore  unreaibnable,  that  they  fhould  be  reftrained  from 
exercifing  their  trades:   the  cuftom  of  London,  for  ex* 
eluding  perfons  firom  ufing  trades  there,  who  were  not 
firee,  was  founded  on  cuftoms  which  they  had,  relating  to 
the  education  of  youth  within  tiieir  city,  and  qualifying  them 
to  be  fireemen,  which  other  cities  had  not,  and  therefore 
fuch  a  cuftom  was  reafonable  there;  but  it  did  not  follow 
from  thence,  that  it  was  reafonable  any  where  elfe,  where 
tbere  were  no  fuch  auxiliary  cuftoms." 
'   The  other  judges  {h)  all  exprefled  their  doubts  about 
the  validity  of  fuch  a  cuftom;  but  they  gave  judgment  in 
fevour  of  the  defendant  on  another  point  (c). 

Notwithstanding  thefe  doubts,  however,  it  is  now 
confidered  as  a  fettled  poin^  that  fuch  a  cuftom,  and  a  bye 
law  founded  on  it,  are  good,  and  that  there  is  no  diftin£tipn, 
in  this  refpe^  between  the  city  of  London  and  other  cities 
and  towns. 

'  Thus,  where  it  was  ftated,  that  there  had  been,  from 
time  immemorial,  an  ancient  cuftom  in  the  city  of  Bath, 

(0)  The  cafe  immediatejy  preceding. 

(h)  Powell,  Powys,  and  Gould. 

(0  Mayoi'  of  Winton  y.  Wilks^  %  Lord  Raym,  1x29. 

<'that 


OP    CORPORATIONS.  ^45 

^<  that  no  ftranger  perfon  had  of  right  ufed  or  exercifed,  or 
of  right  ought  to  ufe  or  exercife  the  craft  or  myftcry  of  a 
taylor,  within  the  cityaforeiaid,  unlefs  he  were  free  of  the 
fame  city ;"  and  that  a  bye  law  had  been  made,  iK^ch  or- 
dained, ^'  that  no  ftranger  nor  foreigner,-  at  any  time  after 
the  making  of  the  bye  law,  ihould  ufe  or  exercife  the  craft 
or  myftery  of  a  taylor,  within  the  faid  city,  unlefs  he  ihould 
be  firft  made  free  of  the  faid  city,  under  a  penalty  of  3s.  44. 
per  day :"  Lord  Mansfield  faid,  with  the  concurrence  of 
the  court,  *'  there  is  nothing  of  doubt  in  this  cafe.-  The 
cuftom  is  good|  and  warranted  by  a  vaft  number  pf 
cafes'*  ( j), 

Wh£RB  the  ohjeSt  of  a  bye  law  is  merely  to  prevent 
fraud,  and  the  provifions  of  it  do  no  more  than  accomplifh 
that  obje£k,  then,  though  in  ftri£tnefs.  a  reftraint  may  be 
laid  on  the  freedom  of  trade,  it  will  be  confidered  only  as  a 
reafonable  regulation^  and,  confequently,  no  cuftom  will  be 
necef&ry  to  fupport  the  bye  law,— Of  this  kind  is  the  law 
of  London,  before  mentioned  (^j>  refpe£Bng  the  BlackwelU 
hall  faflors,  by  which  it  was  ordained,  ^^  that  if  any  citizen, 
freeman,  or  ftranger,  within  the  faid  city,  put  any  broad 
cloth  to  (ale,  within  the  city  of  London,  before  it  was  brought 
to  Blackwell-hall  to  be  viewed  and  fearched,  fo  that  it 
might  appear  to  be  faleable,  and  that  id.  might  be  paid  far 
hallage  for  every  cloth,  he  ihoidd  forfeit  for  every  doth 
6s.  8d."(tf), 

So,  a  bye  law  which  has  in  view  principaUy  the  regula- 
tion, of  police,  though  it  prohibit  the  exercife  of  a  particular 
trade,  withih  certain  limits,  is  good  without  a  cuftom.-^ 
Such  is  the  bye  law,  before  mentioned  (J),  of  the  city  of 

(«)  Woolley  ct  al'  v.  Idle>  4Bur«  1951;  [b)  Ante,  p.  xo4t 

(r)  The  chamherlain  of  London^s  caff>  5  Co.  62  b. 
{d)  Ante,  p.  ZQ4. 

L  3  .      Exeter, 


f  50  THE     LAV 

Exeter,  ^  that  no  butcher  or  other  perfon,  Aould,  within 
:the  walk  of  the  ckf,  flaughter  any  beaft.'*  So  a  bye  law 
isgoo4i  which  prohibits,  under  a  penaky,  ibc  making  or 
iifing  of  any  dangerous  madiine  within  a  city  j  fudi  is  the 
bye  law  of  the  city  of  London,  ^  that  no  one  fiull  aakt  a 
liot  pref!^  nor  ufe  it  in  the  city,  under  a  penalty  of  sol.  ftr 
making,  and  $1.  for  tifing  it  i**  becaufe  die  ufe  of  tfaefe 
:prcSks  is  dangerous  with  Tefpe£l  to  fire  (^r). 

So  a  bye  law  is  good  without  a  cuftom,  which  prdiibits 
the  exercife  of  fame  particular  obnoxious  trades  in  fame 
{particular  fbeets  of  a  city ;  as  ^^  that  a  man  ihall  not  fet 
up  a  tavern  in  Birchin-Iane,"  or  ^*a  brew-houfe  in*  Fleet- 
Areet,"  or  ^^  a  butcher's  or  tallow-chandler's  fliop  in 
Cheapfide"  (^). 

But,  if  under  pretence  ofaj-eguhtionofpolics,  abye 
Jaw  be  made,  reflraining  trade,  for  the  purpofe  of  private 
gain,  fuch  a  bye  law  cannot  be  good  without  a  cuftom  to 
fuppoit  it.  Thus,  where  it  appeared,  in  the  cafe  of  Pain 
and  Haughton  (r),  that  the  city  of  London  had  made  an 
^St  of  common  council,  *^  that.no  carman  (hould  go  with 
his  cart  on  die  ftreets  of  London  without  a  licence^  for 
which  he  {hoiild  pay  a  certain  fum  of  money  to  the  prefident 
i>f  a  certain  hofpital,  for  the  ufe  of  the  poor  of  that  hoi^ 
pital ;"  this  was  adjudged  void,  becaufe  it  reftrained  the 
liberty  of  thattrade  of  a  carman* 

But,  in  the  cafe  of  Player  and  Jenkins  (rf),  Where  it 
was  returned,  "  that  by  the  cuftom  of  the  city  of  London, 
the  mayor  and  aldermen  had  power  to  regulate  all  the  carts 
and  carmen  within  the  city  j  that  certain  ordinances  were 
made,  by  which  the  power  of  ordering  carts  was  given  to 

{a)  X  Roh  Rep.  3t>.    i  Rol.  Abr,  365,    3  Saik,  76. 
(^)  March  1 5.    i  Sid.  284,  (r)  i  Rol.  Abr.  364^ 

(d)  P.  iS  Car.  «,  citeS  Skinner  32 1, 

Chrift^ 


OP  COEPOH^TIONS.  iji 

Cbrift's  Hofpiul,  by  the  govemprs  pf  which  an  order  was 
oigdo^  ^*  that  no  one  ihould  ufe  his  cart  within  the  city, 
without  their  licence,  and  that  there  Ihould  be  but  400 
cart^  ufed  within  the  city;  and  if  any  one  not  licenced 
^ould  ufe  a  csurt  there^  he  (hould  forfeit  405."  this,  upoi| 
the  whole  matter  fet  forth,  was  refolved  to  be  a  good  bye- 
Uw ;  and  the  fame  decifion  had  been  given  in  another  cafe 
fome  time  before,  on  the  fame  bye  law  la) ;  but  the  reafon 
given  for  thefe  refolutions  was,  *<  that  the  mayor  and  alder- 
men intitled  themfelves,  by  fpecial  cuftom,  to  the  power 
of  regulating  all  carrs  and  carmen,  within  die  city  :'*  and 
in  a-fubfequent  cafe  (£},   on  the  lame  bye  law  and  fpecial 

cuftom 

(a)  Gavdl  and  Ta&er,  Hil.  14  and  25  Car. a. 

W  PUyer  and  Broadnax.  The  cafe  of  Broadnax  was  on  a  bahfas 
eoffus  brought  to  remove  him»  he  having  been  taken  by  procefs  on  a 
plaint  exhibited  in  the  court  of  the  fhtdSs  of  London>  and  it  was  re- 
turned,  thaty  time  out  of  mind,  the  mayor,  aldermen,  and  common 
council  of  the  city,  had  had  the  government  and  regulation  of  trade 
within  the  city,  and  power  to  make  bye  laws  concerning  the  lame,  and 
that  they  had  made  a  bye  law,  that  there  (hould  be  but  410  carts  allowed 
to  work  within  the  city,  all  which  (hould  be  licenced  by  the  prefident  of 
Chnft*s  Church  Hofpital,  and  that  there  fliould  be  paid  for  the  licence 
of  every  carr,  il.  and  17s.  per  annum  to  the  faid  prefident,  to  be  em-' 
ployed  for  the  uie^of  the  poor  within  the  hofpital  i  and  that  none  (hould 
ufe  a  carr  without  fuch  licence,  under  a  certain  penalty,  to  be  reco- 
vered, &c.  provided,  that  all  perfons  might  fend  their  own  carrs  to  the 
wharfs,  &c.  and  carry  goods  in  their  own  carrs  from  wharfs,  except 
fuch  as  (hould  be  traders  or  retailers  in  fuel* 

That  Broadnax,  without  fuch  licence,  wrought  with  a  carr  pr0 
iucro  fuo  propria,  and  for  the  penalty  forfeited  thereon,  a  plaint  was 
levied  againft  him,  &c. 

In  behalf  of  Broadnax,  it  was  prayed,  that  there  might  be  no  proce- 
dendo, becaufe,  though  the  bye  law  (hould  be  admitted  to  be  good,  hav- 
ing cuilom  to  warrant  it,  yet  it  appeared,  that  the  plaint  was  infuffi- 
cient,  for  in  that  no  cuftom  was  alleged. 

L4  It 


152  THE    LAW 

cuftom,  Lord  C.  J.  Hale 'declared,  that,  without  a  cuftom, 
the  bye  law  would  have  been  void,  though,  with  the  cuf- 
tom,  it  might  be  good.  « 

Ok  the  principle  of  this  diftipdion,  depended  the  chief 
arguments  againft  a  bye  law  made  by  the  mayor,  aldermen, 
and  common  council  of  the  city  of  London,  by  which,  after 
reciting,  ^'  that  the  number  of  hackney  coaches  driving, 
ftanding,  or  waiting  within  the  city,  was  greatly  increafed, 
and  had  become  fo  great^  and  that  the  ftreets  and  commoa 

It  was  alTo  contended,  that  it  wat  unreafbnaUe  that  fuch  at  traded 
m  fuel  (hou)d  not  be  permitted  to  bring  home  the  woocl^  which  they 
bought  in  the  countryy  in  their  own  carts,  or  to  carry  it  out  to  their 
cuftomers ;  for,  though  they  might  limit  the  number  of  carmen,  which, 
in  too  great  a  multitude,  would  be  a  nuiiance,  and  infeft  the  ftreets,  yet 
they  could  not  reftrain  a  pian  from  ufing  his  own  carrs,  tQ  carry  hi» 
^WB  commodities. 

As  to  the  firft,  the  court  were  of  opinion,  that  it  was  not  neceflkry  to 
mention  the  cuftom  in  the  plaint,  becaufe  it  was  lex  lociy  and  they  took 
notice  of  their  own  cuftom  in  their  own  courts  $  and  the  court  in- 
stanced a  fimilar  thing,  in  a  cuftom  of  Norwich,  which  is,  that  ia 
debt,  on  a  fpeciaJty,  the  AzbtorfoMurfcriptum^  fed  petit  quod  inqutra-, 
fur  de  debito^  and  no  cuftom  is  fet  forth  in  the  record  to  warrant  that, 
(vid.  I  Ventr.  256,  i  Mod.  96,  for  this  cuftom  of  Noi-wich).  But  here 
in  the  habeas  corpus  they  had  returned  the  cuftom,  which  fliewed  they 
had  good  caufe  to  proceed  upon  their  plaint* 

As  to  the  fecfnd,  the  court  doubted  whether  this  bye  law  could  be  a4n 
judged  reafonable  or  good,  becavife  it  would  reftrain  the  weodmongei-s 
from  bringing  their  wood,  &c.  home  in  their  own  carts ;  fo  that,  though 
they  brought  \%  in  the  country  carts  as  far  as  the  libeities  of  the  city, 
they  muft  then  unload,  and  put  it  in  city  carrs,  which  would  be  ex- 
tremely inconvenient,  as  it  would  be,  if  they  Ihould  fend  city  carrs  to 
fetch  it ;  and  though  it  might  be  reafonable  to  prohibit  their  carrying 
their  own  commodities  out  in  their  own  carrs,  that  they  might  not  hav^ 
to  great  an  opportunity  to  cheat  in  their  meafures  s  yet  th«ie  could  be 
no  colour  to  reftrain  them  from  bringing  them  in,    A^^ornatur  i  Ve^it^ 

paflagei 


OF    CORPORATIONS.      ^  IJJ 

paflagesof  the  city  were  fo  filled  and  peilered  by  thedrivw 
ijig  and  ftanding  of  fuch  hackney  coachesythat  the  citizens 
and  people  repairing  the  to  city  were  interrupted,  and  the 
trade  of  the  city  thereby  prejudiced  i**  for  the  remedy  of 
thefe  inconveniences,  and  that  hackney  coaches,  te  be  em-* 
ployed  within  the  city,  might  be  under  fome  regulation  and 
government,  agreeably  to  what  h^  been  already  provided 
•i^oncerning  carrs,  carts,  and  carmeft ;  it  was  enabled  and 
'  ordaine'd,  ♦*  that  from  and  after  the  firft  day  of  May,  thea 
next  enfuing,  the  number  of  hackney  coaches  to  be  em^ 
ployed  within  the  city  and  liberties,  (hould  not  exceed  400; 
and  that  no  perfon,  after  the  faid  firft  day.  of  May,  other 
than  fuch  as  fhould  be  licenced  according  to  that  a(^  ex^ 
cept  only  flage  coaches  to  and  from  their  inns,  and  coaches 
which  fhould  take  up  a  fare  out  of  the  city,  to  be  carj-ied 
into  or  beyond  the  city,  while  they  fhould  be,  without  de^ 
lay  or  covin,  driving  to  fuch  place  in  or  beyond  the  city, 
fhould,  by  himfelf  or  his  fervants,  drive  for  hire  any  hack-^ 
ney  coach,  or  ftand  therewith  to  be  hired  within  the  city 
of  London  or  the  liberties^  under  the  penalty  of  40s.  for 
each  offence/* 

It  was  confeffed,  that  if  the  mayor,  aldermen,  and  com^ 
mon  council  had  enticed  themfelves,  by  a  cuftom,  to  the 
governing  and  ordering  of  the  hackney  coaches,  as  they 
did  of  the  carts,  it  would  have  been  impoffible  ^  diftinguifh 
the  prefent  cafe  from  that  of  Jenkins  and  Player ;  but  it 
wasiniifted,  that  no  fuch  cuftom  being  returned,  and  it  be-r 
ing  impoffible  that  there  fhould,  as  hackney  coaches  were 
of  late  in^itution,  and  therefore  could  not  be  the  fubje£l  of 
a  caftom,  this  foundation  failed,  and  the  bye  law  rnani* 
feftly  imp6fing  a  reftrai^nt  on  a  lawful  occupation,  was 
f  pnfecjuently  void^     The  cafe  was  adjournedi  aiid  the 

city 


154  7^£    LAW 

city  never  thought  proper  further  to  agitate  the  queA 
tion  (a)» 

,    In  the  return  to  a  habeas  corpus^  dire£bd  to  the  mayor^ 
aldermen,  and  fberiffs  of  London^  they  fet  forth  a  cuftoiD. 
by  which  the  mayor,  aldermen,  and  commons  of  that  city, 
had  the  right  of  regulating,  ordering,  and  difpofing  all 
carrs,  drays,  or  brewers  carts,  and  all  perlbns  driyii^  or 
waking  fuch  carrs,  drays,  or  carts,  within  the  city  and 
liberties,  for  preventing  annoyances  in  the  greets,  lanes, 
and  common  pailages  of  the  city  .—They  returned,  like^ . 
wife,  the  general  cuftom,  by  which  they  poflefied  ^ 
power  of  making  bye  laws,  and  then  fet  forth  a  bye  Iaw» 
made  in  purfuance  of  theie  cuftoms,  by  which,  after  re« 
citing,  ^^  that  the  ftreets  were  annoyed  by  drays  aod  carts 
fianding  in  them,  whereas  dieir  work  might  be  done  early 
enough  before  the  ftreets  were  filled  with  coaches  and  pafr 
fcngejrs,"  it  was  enaiScd,   *^  that  no  drayman  or  b»inrer's 
fervant  ibould  be  allowed^  with  bis  dray,  in  any  of  the 
ftreets,  lanes,  or  common  paflages  of  the  city,  in  any  day 
from  Michaelmas  to  Lady-d^ay,  after  the  hour  of  one  in  the 
afternoon,  and  from  Lady-day  to  Michaelmas,  after  the 
hour  of  eleven  in  the  forenoon/* 

The  court  thought  this  cafe  of  fufficient  importance  to 
require  a  foleipn  argument,  and  accordingly  it  was  twice 
argued.  At  the  time  of  the  firft  argument,  Lord  Hard- 
Wicke  was  on  the  bench,  and  exprefled  the  inclination  of 
bis  opinion  to  be  in  favour  of  the  bye  law :  it  was  cer- 
tainly, he  faid,  in  fome  degree,  areftraint  on  trade,  and 
tiicrefore  it  might  be  too  much  to  fay  it  would  be  good 
without  a  cuftom  to  fupport  it  j  but  it  feemed  to  be  made 
under  the  authority  of  the  cuftom  fet  out ;  and  the  queftion, 
Acreforc,  was,  whether  it  was  properly  made  for  enforcing 

{a)  SkiBney>  384.    4  Mod.  229, 

the 


OF    CORPORATIONS. 

the  coftom  and  carrying  it  into  execution.  The  cafe  of 
JHayer  and  Jenkins  bad  gone  a  good  way,  and  he  did  not 
'lee  that  this  went  further^  for  dien  it  might  have  been  (aid, 
4liat  a  man's  trade  might  increafe  (b  as  to  want  carts ;  and 
with  rcfpeSt  to  the  prefent  cafe,  it  was  certain  this  working 
ef  drays  might  be  a  huifance. 

After  the  fecond  argument^  Lord  C.  J.  Lee  delivered 
the.  opinion  of  die  court  to  this  effect;  that  where  there 
was.acuftom  to  regulate  any  part  of  trade,  a  reafonable 
^yedaw  agreeable  to  that  cuftom  was  certainly  good,  and 
where  the  exevcife  of  trade  was  in  its  nature  a  liuifance, 
the  interpofition  of  this  authority  to  reftrain  it  was  highly 
•proper ;  that  the  general  rule  of  bye  laws  no  doubt  was» 
that  they  muft  be  reafonable,  and  not  prejudicial  to  the 
King  or  the  fubje<9;,  but  that  when  the  objed  of  a  law  was 
to  prevent  nuifances,  the  confideration  muft  be  on  the 
convenience  in  general,  taking  in  die  crown,  the  party, 
imd  die  people ;  and  where  the  general  convenience  was 
greater  than  the  inconvenience,  the  bye  law  might  be  pro- 
per  and  reafonablc)  which  was  the  cafe  of  the  bye  law  in 
queftion(ii). 

A  BYE  LAW  may  be  good  in  part,  and  void  for  die 
reft(i^),  for  where  it  confifts  of  feveral  particulars,  it  is  to 
all  purpofesasy^v^r^/ bye  laws,  though  the  proviilons  be 
dHown  togedier  under  the  form  of  ^xr^.— Thus,  the  bye 
law  regulating  the  corn  porters,  which  ordered,  ^thaf 
none  but  free  porters  (hould  intermeddle  in  importing  or 
exporting  any  corn,  roots,  &c.  withiii  the  limits  of  a 
cuftom  to  which  the  law  referred,  and  impofed  a  penalty 
«n  die  perfon  yrfao  ftiould  fo  intermiddle^  and  alfo  on  the  - 

[a)  Bofworth  v.  Keame.    a  Str.  10S5,    Andr.-9i.    B.  R.  H.  405* 
(Jb)  Peif  Pratt,  C.  J.     Str,  469,  et  vid.  Sayer,  156,  ace.     Vid.  in 
Carter,  i»S|  a  difb^m  to  tho  contrary  by  Bridgeman,  C«  J.  ' 

peribn 


1^6  THE     LAW     . 

pcrfon  who  (hould  employ  any  not  free  of  the  company  ;^' 
this  bye  law,  in  an  a£Uon  brought  againft  the  employer 
was  held  void,  as  to  the  penalty  impofed  on  him  (a)^  but 
in  an  adion  brought  againft  the  perfon  intermeddling,  was 
held  good  (b). 

It  was  formerly  doubted  whether  thofe  corporations  who 
have  exclufive  cuftoms,  have  an  original  right  of  adi on  for 
the  breach  of  them  {c) ;  but  in  an  a£lion  on  the  cgie,  by 
the  corporation  of  Colchefter  againft  one  Sympfon,  for 
cxercifing  a  trade  within  the  borough,  not  being  a  free<- 
man, contrary  to  the  cu/iomy  it  was  in  the  5  G.  2,  folenmly 
determined  by  the  court  of  Common  Pleas  that  they 
have  (J) :  it  is  not,  therefore,  neceffary  for  the  corporation, 
having  fuch  a  cuftom,  to  make  a  bye  law  to  enforce  it  i 
but.fuch  a  bye  law  is  convenient  for  the  fake  of  fixing  the 
penalty  at  a  precife  ftim< 

To  fecure  obedience  to  a  bye  law,  it  is  neceflary  that  a 
penalty  of  fome  kind  ftiould  be  annexed  to  the  breach  of  it, 
fot  otherwife  the  bye  law  will  be  nugatory  {e) ;  the  only 
penalty  admitted  by  the  law  of  England  is  9  pecuniary  one^ 
though  either  that  may  be  recovered  by  aSion  or  the  pay<r 
inent  of  it  enforced  by  diftrefs  of  the  offender'^  goods  (/)• 

That  obedience  to  a  bye  law  cannot  be.  enforced  by 
tmprifonment  of  the  offender  (g)y  or  by  the  forfeiture  of 
his  goods  (^),  there"  s^re  a  multitude  of  authorities  |  an4 

(a)  Cuddeh  v.  Eftwick,  6  Mod.  123. 
(h)  Fazakerly  v..Wiltfhire.    Str.  4.6a, 
(0  Vid.  Cro.  El.  803.    6  Mod.  *i, 
(J)  Cited  1  Wilf.  237. 

(e)  **For/'  fays  Lord  Coke,,  ^'oderunt  peccsre  mali  formidias 
pxn«."    5  Co.  63,  b.    3  Leon.  265. 
(/)  5  Co.  64,  a.     , 

(g)  Moore,  411,  n.  563.    5  Co,  64,  a.    8  Co.  1x7,  b, 
(i)  %  Co.  127,  b,  ,  I  Bulftr,  xi>  .*2, .      . 

the 


OP    CORPORATIONS.  t^^J* 

the  reafon  affigned  is,  that  thefe  are  both  againft  magna 
charta. — If  thefe  modes  be  adopted,  an  adibn  of  falfe  im- 
prifonmentin  thfe  one  cafe,  and  trefpafs  for  the  talcing  of 
the  goods  in  the  other;  may  be  maintained  by  the  party 
who  has  been  imprifoned,  or  whofe  goods  have  been 
feized(tf)< 

Neither  can  a  bye  law  be  enforced  by  avoiding  anf 
bond  or  covenant  made  in  contravention  of  it.  Therefore, 
if  a  bye  law  be  made,  ^  that  if  any  freeman  t^e  as  an  ap* 
prentice  the  fon  of  a  ftranger,  the  bonds  and  covenants  ia 
the  indenture  (hall  be  void;"  this  is  a  bad  bye  law  as  to 
the  avoidance  of  the  bonds  and  covenants,  whatever  may 
be  faid  of  the  fubftance  of  it,  as  prohibiting  the  taking  of 
the  fon  of  a  ftraiiger  for  an  apprentice  :  it  ought  to  be  en- 
forced  by  a  pecuniary  penalty  on  the  mafter  for  taking 
him(*).  ' 

The  penalty  muft  be  in  a  fum  certain,  and  not  left  to 
the  arbitrary  afTeflment  of  the  makers  of  the  law,  according 
to  circumftances,  even  though  the"  utmoft  extent  of  the 
fum  be  limited  (r).  So,  a  penalty  certain  impofed  by  a 
bye  law  made  by  the  tenants  of  a  manor,  muft  be  levied 
as  it  is,  without  affeerment  (^/)« 

Where  the  penalty  is  given  in  general  terms,  without 
fpecifying  to  whofe  ufe  it  is  to  be  applied,  it  is  to  be 
Underftood  to  be  to  the  ufe  of  the  corporation;  and 
if  no  mode  of  lecbvery  be  fpecified,  it  may  be  reco- 
vered by  aftion  of  debt,  or  by  aftion  on  the  cafe  on 
affiimpjt  {e)y  in  any  of  the  courts  of  Weftminfter  Hall  (/), 
in  the  name  of  the  corporation  (g).    So,  if  it  be  expreisJy 

Ca)  Clarke's  ckfc,  5  Co,  64,  a.  1  Term  Rep.  1x8.  Ante,  p.  109,  no^ 
(b)  Moore,  411  n.  562-    .  (c)  Bridge-  139, 

{d)  3  Leon.  S.  , 

(e)  »  Lw.  252.      CHft.  901,  902,  cited  Cora.  Dig.  Bye  Lavr,  D.  1. 
^  (/)  Vid.  1  Rol.  Abr.  366.        C?)  1  V7ilf.  235. 

limited 


15$  THE     LAW 

.  limited  to  die  ufe  of  the  corporatioiiy  but  noprovUlM  be 
made  in  whofe  name  it  fluU  be  fued  for)  the  aiftion  muft  be 
brought  by  the  corporation  itfelf  (a).    But  it  has  beea  the 
pradice  in  many  cafes  to  appoint  the  penalty  to  be  iuedfor^ 
in  the  name  of  the  chamberlain,  or  fome  officer  of  an  e^i« 
Talent  denomination  *  {b)y  and  this,  in  the  cafe  of  die 
Blackwell'hall  factors,  was  allowed  to  be  a  proper  mode 
(rf* proceeding  (c)  ;  nor  does  it  appear  diat  any  objedion  had 
been  taken  to  it  till  the  cafe  of  HoUings  and  Hung^rlbrcb 
in  the  3  C*  i  (d)*    That  was  an  a£tion  of  debt^  brought 
by  the  chamberlain  of  Briftol  for  the.  recovery  of  a  penalty 
of  zool.  impofed,  by  a  bye  law,  on  every  man  who.fliould 
be  chofen  a  common  councilman,  and  (hould  not  appear 
within  a  certain  time  and  take  the  office  upon  him:  on 
behalf  of  the  defendant  it  was  argued,  that  the  chamber* 
Iain  was  a  ftranger  to  the  corporation;  that  he  was  a 
firanger  to  the  right,  and  therefore  a  ftranger  to  the  remedy, 
for  that  the  right  was  in  the  corporation;  but  Lord  C*  J. 
Parker,  and  the  reft  of  the  court,  held  diat  the  adiion  was 
well  brought,  and  that  ^  the  chamberlan,"  neceflarily 
meant  ^^the  treafurer"  of  the  corporation;  that  he  was 
not  a  ftranger,  but  a  part  of  the  corporation ;  and  therefore 
that  the  court  would  take  notice  of  the  relation  there  was 
between  them. 

But  the  power  of  fuing  for  the  penalty  cannot  be  given 

to  a  mere  ftranger : — In  the  cafe  of  Bod  wick  and  Fennel  (/), 

die  penalty  of  4].  for  the  breach  of  a  bye  law  of  the  town 

of  Devizes  was  given  to  any  per/on  who  ft>ouldfueJhr  tbi 

fame  \  the  action  was  brought  in  the  borough  court,  the 

{a)  Vid.  mafter,  &c.  of  vintneiV  company  v.  Paffcy.  1  Bur.  135. 
{JH)  5  Co.  63,  b.    B.  R .  H.  406.    Sayer»  a54. 
(r)  Chamberlain  of  London's  cafe,  ^Co.  65,  b. 
(</)  Cited  1  Wilf,  235.  (0  »  Wilf.  133, 

defendant 


OF    CORPORATIONS. 


J  59 


defendant  there  demurred,  and  judgment  was  given  for  the 
plaintiff;  k  writ  of  error  was  brought  in  the  King's  Bench^ 
and  that  courts  after  iblemn  argument  and  much  delibera* 
tion,  reverfed  the  judgment,  on  the  principle,  that  the 
torporation  could  not  give  theladion  to  aftnmger,  but 
muft  either  fue  for  the  penalty  in  their  own  name,  or  in 
the  name  of  fome  particular  officer,  as  their  chamberlain  or 
treafurer* 

So,  where  a  bye  law  made  by  the  mayor,  aldermen, 
and  commons  of  the  city  of  Bath,  for  the  better  preferr- 
ing a  cuftom,  by  which  ^  any  one  not  free  of  the 
city  and  of  the  taylors'  company  there,  was  excluded  from 
exercifing  that  trade  within  the  city,''  gave  a  penalty  to 
be  levied  by  diftrefs,  or  recovered  by  action  of  debt,  by 
the  mafters  of  the  faid  company  for  the  time  being  \  the 
bye  law  was  held  bad  in  giving  the  a£tion  to  the  latter,  be- 
caufe  they  were^rjwg'tfrj  to  the  corporation  of  Bath,  by 
whom  the  law  was  made  (<?)• 

But  though  the  aAion  cannot  be  given  to  a  mere  ftran- 
.ger,  it  is  not  abfolutely  neceflary  that  the  penalty  fhould 
be  given  to  the  corporation;  it  may  be,  and  frequently  is, 
given  to  the  perfon  who  (hall  give  information  of  the 
breach,  and  to  the  poor  in  different  proportions  [h) ;  fome* 
times  part  is  given  to  the  informer,  part  to  the  poor,  and 
a  ^sart  not  exprefsly  appropriated ;  in  which  cafe  the  latter 
part  belongs  to  the  corporation  (!:}. 

The  penalty  of  a  bye  law  may  be  direSed  to  be  re- 
covered in  the  courts  6f  the  corporation  within  which  the 
bye  law  is  made,  provided  the  members  of  the  court,  or 


(a)  Totterdell  and  Harris^  maAers  of  the  taylors'  company  at  Bath, 
y.  GJazby.    a  Wilf.  a66. 
{b)  Vid.  B.  R.  H.  406,    Sayer,  %^ 
(0  Vid.  3  Bur*  1848, 

the 


i6o  tnt  LAW 

the  jury,  dr  the  officer  who  returns  the  latter,  be  not  in* 
terefled  in  the  penalty,  or  the  fubje^  of  the  bye  law  whick 
the  penalty  is  intended  to  enforce*    But  if  any  part  of  the 
penalty  is  to  go  by  the  terms  of  the  law  to  any  of  thofe 
who  neceilkrily  compofe  the  court,  it  cannot  be  recovered 
in  that  court.    Thus,  where  debt  was  brought  in  the  court 
of  the  mayor  and  aldermen  of  the  city  of  London,  to  re^ 
cover  4ooI.  the  penalty  of  a  bye  law  made  by  the  com* 
mon  council,  of  which  300L  was  to  be  applied  to  the  ufe 
of  the  mayor  and  commonalty  of  the  city ;  it  was  held, 
pn  a  writ  of  error,  that  though  the  mayor  and  commonalty 
might  make  a  bye  law,  limiting  the  penalty  to  themfelves, 
yet  it  could  not  be  recovered  in  the  court  of  the  mayor  and 
aldermen,  unkfs  the  mayor  could  be  fevered,  and  the  court 
held  before  the  aldermen  alone,  in  which  cafe  it  was  faid 
it  might,  from  the  fame  reafon  that  the  Chief  Juftice  of 
the  Common  Pleas  might  bring  an  action  in  that  court, 
with  a  (pecial  entry  of  *'  pleas  before  J.  Blencoe,  Knight, 
ice  J*  omitting  the  Chief  Juftice,  becaufe  the  other  judges 
are  a  court  without  him :   but  with  deference  to  Holt, 
whofe  comparifbn  this  is,  it  does  not  feem  a  fair  one,  be- 
caufe, if  the  mayor  could  really  be  fevered,  yet  the  reft  of 
the  court  have  an  intereft  as  members  of  the^ corporation; 
the  comparifon  would  only  apply  if  the  penalty  were  given 
to  the  mayor  alone,  to  his  own  perfonal  ufe,  without  the   . 
commonalty. — The  jC.  J.  however,  ftates  explicitly,  that 
if  the  mayor  be  an  integral  part,  fo  that  there  can  be  no 
court  without  him,  but  that  it  muft  neceflarily  be  the  court 
of  the  m^yor  and  aldermen,  the  penalty  camiot  be.re^ 
covered  there;  which  is  in  hSt  the  cafe  j  for  though  the 
mayor  abfent  himfelf,  iarid  the  recorder  fit  for  him,  and 
that  too  by  the  cuftom  of  the  cit^^,  yet  that  makes  no  dif- 
ference ;  for  though  the  recorder  in  faft  prefide,  and  the 

judgment 


OF     CORPORATIONS.  l6l 

}ud%ment  he  perfonalfy  hisy  yet  in  contemplation  of  law,  it 
is  the  adl  of  the  mayor :  the  recorder  is  his  deputy,  and  his 
aS  the  aft  of  his  fuperior  (a). 

Nor,  if  the  fubjecl  of  the  bye  law  be  the  aflertion  of 
the  privileges  of  the  freemen  of  the  corporation  againft 
ftrangersj'can  the  aSion  for  the  penalty  be  brought  in  the 
corporation  courts,  where  the  jury,  or  the  officer  who  re- 
turns them,  are  neceflkrily  freemen. — There  are  three 
principal  cafes  on  this  fubjeft,  the  two  firft  of  which,  as 
far  as  they  go,  feem  to  contradift  this  principle  -,  but  the 
third  completely  eftablifhes  it. 

The  firft  is  the  cafe  of  Bodwic  and  Fennel  before  menn 
tioned  (^),  in  which  one  exception  taken  in  favour  of  the 
plaintiff  in  error,,  was  j  that  the  court  where  the  aftion 
was  brought,  was  held  before  the  mayor,  recorder, 
and  BURGESSES  of  the  Devizes  ;  that  the  adion  was  in- 
deed in  the  nature  of  a  popular  aftion,  brought  by  ^Jlran^- 
ger^  but  yet  it  muft  be  coniidered  as  inftituted  for  the  be- 
nefit of  the  corporation,  to  that  both  the  judges  and  jury 
were  to  judge  in  their  own  caufe ;  becaufe  the  breach 
affigned  was  on  the  cujiom^  and  not  on  the  bye  law,  the 
latter  being  introduced  only  to  fix  the  damages,  and  the 
former  being  manifeftly  for  the  benefit  of  the  corporation. 
This  objeftion,  however,  was  not  conceived  by  tjie  court 
to  carry  much  weight  with  it,  and  the  judgment  was  given, 
as  has  been  already  feen,  in  favour  of  the  plaintiff  on  ano- 
ther point. 

THRnext  cafe  was  that  of  Harris  and  Wakenian,  which 
was  a  writ  of  error  brought  on  a  judgment  given  in  an 
a£tion  of  debt,  brought  in  the  court  of  the  mayor  of  Wor- 
cefter.— -The  plaintiff  below  alleged  in  his  declaration  that 

{a)  Mood  V.  the  mayor  and  commonalty  of  Londont    Salk.  397>  8. 
\h)  Ante,  p,  158.    I  Wilf,  233. 

Vol.  II.  M  he 


1 62  'the    LAW 

he  was  chamberlain  of  the  city  of  Worcefter ;  that  by  t 
cuftom  of  that  city,  no  perfon,  not  being  a  freeman,  ought 
to  fell  or  put  to  fale  by  retail,  any  goods  within  the  £ud 
city,  or  the  liberties  or  fuburbs  thereof;  that  by  another 
cuftom  the  corporation  had  a  power  to  make  bye  laws  i 
that  a  bye  law  was  made,  by  which  a  penalty  of  4!.  was 
impofed  on  every  perfon,  not  being  a  freeman,  who  fliould 
fhew,  fell,  or  put  to  fale  any  goods  by  retail,  or  keep  a 
(hop  for  the  ihewing,  felling,  or  putting  to  (ale  of  goods 
by  retail  within  the  city,  or  the  liberties  or  fuburbs,  to  be 
recovered  in  an  a£Uon  of  debt,  brpught  in  the  mayor's 
court,  in  the  name  of  the  chamberlain :  it  appeared  that 
ilTue  was  joined  in  a  plea  of  ^^  nil  debet ;"  and  that  there 
was  a  verdiSt  and  judgment  for  the  plaintiff:  it  appeared 
likawife  from  a  bill  of  exceptions,  that  the  jurors  were 
freemen;  that  the  judges  were  members  of  the  corpora- • 
tion ;  and  that  the  objeftions,  made  at  the  trial,  on  thefe 
accounts  were  over- ruled. — The  judgment,  after  great 
confideration,  it  is  faid,  was  affirmed,  and  the  court 
declared  that  theie  obje£tions  were  very  properly  over- 
ruled {a). 

T|iE  third  cafe  was  that  of  He&eth  and  Braddock, 
which  was  a  writ  of  error  brought -in  the  King^s  Bench, 
from  the  court  of  Great  Seffions  for  the  county  of  Chefter, 
who  had  reverfed  the  judgment  of  the  Portmote  court  of 
the  a/y  of  Chefter,  in  an  adlion  of  debt  brought  there  for 
the  recovery  of  a  penalty  on  a  bye  law  made  by  the  cor- 
poration of  that  city;  the  bye  law  was  founded  on  an  ex*  . 
clufiye  cuftom,  and  the  breach  affigned  in  the  defendant's 
keeping  an  open  fliop,  and  exercifing  the  trade  of  a  grocer, 
within  the  city,  without  being  a  freeman  :  the  defendant 
pleaded  ^^  nil  debet;''  iffue  was  joined,  and  a  wn/V^  awarded 

{a)  Harris  v.  Wakeman^  Sayer^  254. 

to 


0#     CORPORATIONS..  163 

to  die  fherilFs  of  the  city  of  Chefter.  The  defendant,  on 
the  return  day  of  the  venire,  challenged  the  array  of  the 
pannel,  becaufe  it  wzs  made  by  the  iheriils,  who  were 
citizens  and  freemen  of  the  city ;  wherefore  he  prayed 
that  the  pannel  might  bequaihed.  To  this  challenge  of 
the  array  the  plaintiiF  demurred,  and  the  defendant  joined 
in  denuirrer :  after  the  entry  of  the  joinder  in  demurrer, 
die  record  proceeded  thus:  "and  hereupon  it hjudicialfy 
taken  nodce  of  by  the  faid  court  here,  and  is  known  to  the 
fame  court,  diat  by  the  cuftom  and  conftitution  thereof^ 
and  of  the  city  aforefiiid,  no  perfon  or  peWons  can  or  ought 
to  array  the  pannel  of  any  jury  within  the  jurifdidion  of 
the  (aid  court,  or  in  any  civil  fuit  widiin  the  iaid  city, 
odier  than  the  Jhiriffs  of  the  iaid  city,  for  the  time  being, 
or  one  of  them,  or,  by  reafon  of  any  default  in  the  faid 
lheri£&,  the  coroners  of  the  faid  city  for  the  time  being,  or 
one  of  them }  and  that  by  the  cuftom  of  the  (aid  city,  from 
time  itnmemorial,  no  perfbn  or  perfons  can  or  ought  to  be 
iherifiEs  or  coroners  of  or  within  the  faid  city,  but  citizens 
and  freemen  of  the  fame  city  :"  it  then  ftated  the  judg- 
ment of  the  court,  ^^  that  the  faid  challenge  of  the  defend- 
ant to  the  faid  array  of  the  faid  pannel  be  difallowed;  and 
that  the  faid  pannel  of  the  aforefaid  jury,  fo  arrayed  as 
aforefaid,  be  allowed  and  taken."-»It  then  ftated,  "  that 
the  defendant,  ore  tenus^  in  open  court  challenged  the  polls : 
becaufe  the  jurors,  and  each  of  them,  were  citizens  and 
freemen;**  this  challenge  was  alfo  difaHowed  by  the  Port- 
mote  court;  on  which  the  ifTue  was  tried,  and  averdidl 
found,  and  judgment  given  for  the  plaintifB.  A  Writ  of, 
error  was  then  brought  in  the  court  of  Great  Seffions» 
where  thts  judgment  was  reverfed,  and  on  this  reverfal  the 
writ  of  error  was  brought  in  the  court  of  King's  Bench. 

M  t  Lord 


.j^ 


\ 


164  THE     LAW 

Lord  Mansfield,  aftet  ftating  the  cafe  and  the  obje<3ions 
which  had  been  over-ruled  in  the  Portmote  court,  obferved, 
that  in  anfv^er  to  thefe  obje£bions,  it  had  been  argued  for 
the  plaintiff  there,  that  neither  the  iheriiFs  nor  the  jurors 
were  at  all  interefted  in  the  prefent  fuit ;  that  it  had  been 
indeed  admitted,  that  where  a  corporation  are  parties  to 
the  fuit,  or  immediately  interefted  in  the  very  ifTue  in  qlief- 
tion,  no  freeman  could  be  either  a  juror  or  a  vt^itnefi:  but 
that  it  had  been  faid,  that  in  this  cafe  the  corporation  were 
not  parties  to  the  a6lion,  nor  in  any  way  concerhed  in  the 
point  in  iflUe ;  that  the  fuit  was  by  the  treafurers  in  their 
feparate  capacity,  and  that  whatever  might  be  the  event, 
the  corporation  could  neither  pay  nor  recover  any  cofts ; 
that,  in  thii  adlion,  the  object  of  litigation  was  merely  the 
penalty  of  the  bye  law  \  and  that,  in  that  penalty,  the  cor- 
poration had  no  (hare  nor  intereft.  It  had  been  further  ar- 
gued, that  though  the  bye  law  was  founded  on  a  cuftom 
*'  to  exclude  all  foreigners  from  the  city,'*  and  the  freemen 
might  be  laid  to  have  an  intereft  in  that  excluCon  \  yet  this 
was  a  remote  confideration,  which  at  moft  could  affedonly 
fuch  of  the  freemen  as  happened  to  be  tradefmen ;  that  the 
circumftance  of  a  freeman's  being  a  trader  was  a  particular 
uncertain  incident^  which  if  it  happened  to  occur  in  any  of 
the  jurors  might  indeed  warrant  a  challenge  y^ry2ii;«i<r ; 
but  that  the  mere  poffibility  of  fuch  an  intereft  was  not  fuf- 
ficient  ground  (ox  z  principal  challenge.  It  had  alfo  been 
obferved,  that  the  verdi£t  for  this  penalty  would  not  avail 
the  corporation  in  any  fuit  upon  the  cuftom  i  for  that  if  the 
cuftom  were  to  be  litigated  in  a  fuperior  court,  the  corpo- 
ration could  not  give  this  verdi£):  in  evidence.  And  as  to 
the  fuggeftion,  it  had  been  contended,  that  every  court 
muft  judicially  take  notice  of  its  own  cuftoms ;  and  that 
as  none  but  freemen  could  pojlfibly  be  either  Iberifis  or 

jurors, 


OF    CORPORATIONS.  165 

jurors,  if  the  prefent 'objeaion  fliould  prevail,  thh  bye 
law  wauld  be  left  without  a  remedy  to  enforce  it  j  and  that 
confequently  there  would  be  a  failure  of  juftice. 

But  we  are  all  very  clearly  of  opinion,  continued  his 
lordihip,  that  in  this  cafe,  neither  the  fherifFs  nor  the  jury 
were  competent ;  and  therefore  the  challenge  was  impro- 
perly over-rul.ed  at  the  Portmote  court. — There  was  no 
principle,  he  faid,  more  clearly  fettled  than  this : — That 
any  degree  of  intereft  in  the  queftion  depending,  was  a 
decifive  objection  to  a  witnefs ;  much  more  was  it  to  a 
juror,  or  to  the  officer  by  whom  the  jury  was  returned.— 
The  minutenefs  of  that  intereft  could  not  relax  the  objec- 
tion :  for  the  degrees  of  influence  could  not  be  meafured : 
no  line  could  be  drawn  ;  but  in  the  prefent  cafe,  every 
member  of  the  corporation  was  evidently  interefted  in  the 
very  iilue  to  be  tried ;  for  the  cii/Iom  ''  to  exclude  all 
ilrangers  from  trading  in  the  city"  was  the  foundation  of 
the  action ;  it  was  the  only  ground  on  which  fuch  a  by^ 
law  could  in  any  cafe  be  valid  ;  as  a  bye  law  to  ^'  exclude," 
without  a  cuftom  to  fupport  it,  would  be  void,  ^s  an  illegal 
reftraint  on  the  common  right  of  the  fubjedl :  it  was  there^ 
fore  neceflary  for  the  plaintiffs  to  allege  this  cuftom  in  their 
declaration;  and  the  defendant's  ple^  of  "nil debet"  put 
the  whole  declaration  in  IflTu^ :  on  that  iflTue  the  plaintiffs 
muft^r^/  the  cuftom  to  exclude,  as  well  as  the  bye  law; 
and  die  jury  muft  form  their  veridift  on  the  whole ;  for  all 
the  fafts  muft  concur,  to  prove  the  defendant  indebted  to 
the  platntifii.  If  there  was  no  fuch  cuftom,  the  bye  law 
was  a  nullity,  and  confequently  the  defendant  could  not 
owe  the  penalty.— £vfry  freeman,  therefore,  was  interefted 
in  the  ijffue  to  be  triod :  they  might  indeed  have  no  fhare  in 
the  penalty  itfelf ;  but  they  were  interefted  in  the  fails  on 
which  the  penalty  depended. 

Ms  The 


1  66  T  H  B     L  A  W 

Ths  exclufion  of  foreigners  was  a  monopoly  to  the  free- 
men themfelves;  to  enforce  this  exclufion  by  bye  laws  and 
penalties  was  to  fecure  that  monopoly :  and  in  this  a^on 
the  very  freemen  who  were  to  gain  by  fecuring  diis  mono- 
poly were  the  jury  to  determine  it. 

In  the  cafe  of  Bodwic  and  Fennel  it  had  been  ftated  at 
the  bar,  that  ^  no  exception  or  challenge  had  been  taken :" 
and,  as  a  party  might  wave  all  exceptions,  if  he  pleafed  i 
if  he  did  n^t  obje£l,  it  was  a  virtual  acquiefcence. 

Ik  Wakeman  and  Harris,  there  was  alfo  no  challenge ; 
and  the  bill  of  exceptions  was  notfeaUdi  the  court,  there- 
fore, could  take  no  notice  of  it. 

It  had  been  faid,  that  if  the  defendant's  challenges  were 
allowed,  the  Corporation  would  be  left  without  remedy  on 
the  bye  law. — The  apfwer  was,  that  if  the  faft  were  true, 
**that  they  cbuld  impannel  no  jury  but  of  freemen,"  the 
fault  was  their  own  in  confining  the  a£tion  to  their  own 
court.  On  the  other  hand,  if  they  had  a  power  to  im- 
pannel non- freemen,  which  it  was  probable  they  had,  as 
the  city  was  a  county  of  itfelf,  it  was  their  own  &ult  that 
they  did  not  do  it, 

I V  the  regulation  of  their  own  members  they  might,  in- 
deed, make  bye  laws,  and  enforce  the  obfervation  of  them 
by  profecutions  among  themfelves ;  becaufe  every  mem- 
ber of  th^  corporation  was  bound  by  the  jurifdidion  into 
which  he  voluntarily  entered  i  and  all  being  freemen, 
their  circumftances  were  equal.  But  if  corporations  were 
to  try  their  own  fuits  zgdindjfrang^rs^  on  a  bye  law  ex- 
cluding- all  traders  but  themfelves,  there  would  be  an  end 
of  the  difiindion  which  had  long  been  eftablifhed,  ^^  tha( 
a  bye  law  which  }ays  this  reftraint  on  trade  is  vpid,  unlefs 
there  be  a  ^u/iom  to  ftipporl  it." 

If  the  cuftom  was  a  neceflary  foundation  for  the  bye 

law^  it  was  neceflary  to  provt  it ;  but  if  the  freemen  them- 
felves 


OF    CORPORA.tlONS.  1 67 

felves  might  determine  the  queftion,  they  would  not  be 
very  exadl  in  that  proof;  and  bye  laws'themfelves,  without 
Atch  cuftom,  would  foon  have  an  equal  eScA. 

Had  this  bye  law  been  g£neral  without  limiting  the 
a£lion  to  the  treafurers,  or  to  their  own  courts  they  might 
then  have  tried  it  in  ^fuperiof  court,  and  the  whole  would 
have  come  to  a  proper  decifion. — We  are,  therefore^  con- 
cluded his  lordfbip,  all  of  opinion,  ^'  that  the  judgment  of 
the  court  of  Great  Seffions,  reverfing  the  judgment  of  the 
Portmote  court,  ought  to  be  affirmed"  (a). 

In  an  a£lion  of  debt,  for  the  penalty  of  a  bye  law,  the 
time  when  it  was  made,  the  parties  by  whom  it  was  made, 
their  authority  to  nuke  it,  the  cuftdm  on  which  it  is 
founded,  if  it  be  founded  on  a  cuftom,  the  bye  law  itftlf, 
and  the  breach  of  it  by  the  defendant,  muft  be  all  fet  forth  ^ 
that  the  court  may  judge  both  whether  the  bye  law  be 
good,  and  whether  the  defendant  be  a  proper  obje^  of  the 
a£lion  {h\ 

In  debt  on  a  bye  law,  the  wager  of  law  is  not  permitted, 
as  it  does  not  come  under  the  principle  on  which  it  was 
permitted  in  a£lions  of  debt  at  common  law  (r}. 

Though  the  penalty  of  a  bye  law  may  be  levied  by 
diftrels,  yet  it  is  faid,  that  mode  cannot  be  adopted,  with- 
out a  prefcription  to  diftrain,  unlefs  the  bye  law  exprefsly 
appoint  it  (^^J. 

But  in  juftifying  adiftrefs  for  the  penalty  of  «  bye  law, 
made  by  the  homage  of  a  manor  at  a  court  baron,  authorifed 
by  cuftom,  it  is  not  neceilary  to  ^r^ri^^  to  levy  the  pe* 
nalty  by  diftrefs ;  for  the  prefcription  being  of  the  power  to 

{a)  Heiketh  v.  Braddocky  3  Bur.  1847-^1859. 
(^)  Vid.  Hut.  5  Hob.  an.    i  Str.  539.    Brownl.  and  Gouldf.  177. 
(0.  Vid.  Salk.  682,  3,  4.  (<0  I  RoU  Abr.  367,  cites  5  Co. 

^4,  and  Dy.  15  El.  32;,  vid,  Bndge.    139.2  Vcntr.  183.    3  Salk.  76. 

M  4  make 


l68        •  '     THE     LxAW 

make  the  bye  law,  and  the  bye  law  itfelf  ordaining  die  dir* 
trefs,  it  is  the  fame  thing  as  if  the  prefcription  had  direfUy 
authorifed  the  diftrefs  (a),  -     ' 

Where  a  bye  law  orders  the  penalty  to  be  levied  by 
diftrefs,  it  has  been  a  queftion,  how  that  diftrefs  is  to  be 
made:— the  penalty  of  los.  in  the  cafe  of  the  merchant 
taylors,  was  to  be  levied  by  the  mafter  and  wardens,  by 
diftrefs  or  otherwife  ;  they  gave  a  power  of  attorney  to 
levy  it :  it  was  objedled,  that  this  authority  to  diftrain  was 
liniited  to  the  mafter  and  wardens,  from  a  confidence  re- 
pofed  in  their  difcretion,  to  take  a  reafonable  diftrefs,  and 
at  a  convenient  time ;  and  that,  therefore,  they  could  not 
give  a  power  of  attorney  to  make  the  diftrefs ;  it  was^n- 
fwered,  and  the  anfwer  feems  a  good  one,  that  the  power 
of  making  the  diftrefs  was  referred  to  the  mafter  and  war- 
dens in  their  politic  capacity,  and  not  in  their  natural  per- 
fons,  and  that,  therefore,  they  could  not  aft  otherwife  than 
by  making  a  letter  of  attorney.  But  this  point  remained 
undecided,  the  judgment  being  given  on  the  bye  law 
itfelf  (^}.  . 

Where  a  penalty  was  given  to  the  two  bailiffs  of  a  town, 
and  appointed  to  be  levied  by  diftrefs,  but  it  was  not  faid 
by  whom  to  be  made ;  it  was  held,  that  as  it  was  not  ap- 
propriated to  the  ufe  of  the  corporation,  it  muft  be  intend- 
ed, that  it  was  to  be  paid  to  the  bailiffs  for  their  own  ufe  j 
in  which  cafe  either  of  them  might  diftrain  for  it  (c). 

Where  the  penalty  is  to  be  enforced  by  diftrefs,  it  has 
been  doubted,  whether  the  diftrefs  can  be  carried  into  effed 
by  thefaU  of  the  goods  (d). '  It  feems,  by  the  general  cur- 
rent of  authorities,  that  it  cannot  (e). 

.  {a)  Ld.  Raym.  91. 
(^)  Moore  591.    Vid.  Lutw.  1331,    Com.  Hep.  269.    Ante,  131. 
(f)  Sayer,  183,  vid.  i  Andcrf:  Z34.  (d)  1  Keble,  733. 

(e)  Vid.  3  Lev.  a8.    Clarke  v.  Tucket.    »  Vent.  183. 

In 


OF    CORPORATIONS.  169 

lif  juftifying  a  diftrefs  for  the  penalty  of  a  bye  law,  the 
defendant  muft  allege  the  breach  in  the  ofiender  diredly  as 
a  matter  of  fa£l;  "  that  it  was  prefented  before  the  court 
of  a  manor,  that  he  committed  the  breach,''  is  not  fitffi- 
cient  (a). 

Though  a  bye  law  cannot  be  enforced  by  imprifonmentj 
yet  there  are  ieveral  cafes  in  the  books,  which  feem  to  inti- 
mate, *'  that  a  cufttm  for  a  court  pf  record,  within  a  cor- 
poration, to  imprifon  for  a  difobedience  of  order,"  is 
good. 

On  the  return  to  a  writ  of  habeas  corpus,  it  appeared, 
that  the  defendant  had  bc^n  called  before  the  court  of  alder- 
men in  London,  for  having  foreftalled  fiih;  that  when 
ordered  not  to  foreftall,  he  had  refuied  obedience  to  the 
order,  and  affirmed,  that  he  would  not  conform  to  it;  and 
that  in  purfuance  of  a  cuftom,  they  had  committed  him  tiH 
he  fhould  promife^  obedience :  it  was  objefted,  that  this 
cuftom  was  bad,  without  the  addition  of  the  alternative, 
"  till  he  (hould  be  delivered  by  due  courfe^of  law;**  to  which 
it  was  anfwered,  that  it  was  not  necefTary  to  allege  the  de- 
livery by  due  coiirfe  of  law,  in  the  ftatement  of  the  cuftom, 
though  in  the  commitment  that  claufe  muft  be  inferted, 
which,  in  fa£):,  in  this  cafe,  it  was*  The  court  held  the 
cuftom  good  (^). 

Whatever  be  the  mode  of  enforcing  obedience  to  a 
bye  law,  prefcribed  by  that  bye  law,  that  mode  muft  be 
ffriftly  purfued ;  therefore,  where  a  bye  law  appointed, 
that  a  penalty  ftiould  be  incurred  for  the  offence  to  pre- 
vent which  it  was  made,  and  that  on  due  proof  being  made 
ofrefufalto  pay  the  penalty,  by  the  party  offending,  \t 
fhould  be  levied  by  diftrefs  ;  the  defendants  to  an  a£Uon  of 

« 

{ci)  3  Leon.'  8. 

{*)  City  of  London  v,  Coatts/2  Kcb.  75*,  3,    1  Vcntr.  115. 

trefpafs 


I»jO  ^HB    LAW 

treTpafi  juftified  ttonfdves  by  alleging  that  dut  ptoof  of 
the  refufal  had  been  made  before  die  matter  and  ^wdens, 
&c.  this  was  held  infufficient,  o»  the  ground  that  the  dui 
proof  intended  by  the  bye  law  mult  be  proof  by  verdid; 
though  it  was  admitted,  that  had  the  bye  law  expreffed,  that 
on  proof  being  made  before  the  matter  and  wardens,  &c. 
that  would  have  fupported  the  juftificatlon  {a). 

So,  if  a  bye  law  enaft  •'  that  on  proof  of  refu(al  the 
matter,  &c.  may  enter  into ,  the  houfe^  booA,  or  fliop, 
warehoufe  or  cellar  of  the  offender,*'  and  the  juftification  do 
not  aver  that  the  goods  diftrained  were  in  any  of  thefe 
places,  but  only  in  the  city  at  large,  this  will  be  infuffici- 

cnt(^). 

'  The  validity  of  a  bye  law  may  be  called  in  quetHon,  by 
an  adHon  exprcfsly  brought  to  recover  the  penalty ;  or,  if 
die  mode  of  enforcing  obedience  be  diftrefi,  by  aq  a£l:ion 
of  trefpafs  by  the  party  on  whom  the  dittrefi  is  made  (c }. 

So^  it  may  be  called  in  queftion,  on  the  return  to  a  man- 
damus, where  the  party  to  whom  the  writ  is  direfted,  jut 
tifies  his  refufal  to  do  the  thing  commanded,  under  the  au- 
thority of  the  bye  law  [d). 

So,  if  the  penalty  be  ordered  to  be  recovered  by  aftlon 
of  debt,  in  the  courts  of  the  corporation,  the  validity^  of  the 
bye  law  may  be  queftioned,  in  every  cafe  but  in  that  of  the 
city  of  London,  on  a  writ  of  error  in  the  King's  Bench' (^}, 

So,  in  the  cafe  of  the  city  of  London,  the  validity  of  a 
bye  law  may  be  determined  on  motion,  in  a  fummary 
way,  on  the  return  to  a  habeas  corpus ;  in  which  cafe,  the 
(pecial  matter  of  the  bye  law  mutt  be  returned,  as  well  as 
all  the  proceedings  thereon,  and  every  thing  which  is 
neceffary  to  be  ftated  in  an  adion  of  debt  in  a  fuperior 

(tf)  Bridge.  141.  {h)  Id.  ibid.  (0  Saycr  185. 

\d)  Vid.  3  Bur.  \yi.%.       {/)  Vid.  Harris  v.  Wakcmani  Saycr.  254. 

court; 


OP     CORPORATIONS.'  J*ft 

court;  and  it  feems,  that  if  the  writ  be  delivered  before  tho 
plaintiffhas  declared  in  the  inferior  court,  he  ought  imme- 
diately to  enter  his  declaration,  that  it  may  be  returned  on 
the.  habeas  corpus,  and  the  caufe  of  adion  appear  to  thei 
court  (j). 

But  this  fummary  mode  of  deciding  on  the  validity  of  a^ 
bye.  law  is  confined  to  the  cafe  of  the  city  of  London. 

A  WRIT  of  habeas  corpus^  cum  caufa^  from  the  court  of 
King's  Bench,  having  been  directed  to  the  mayor,,  alder- 
men, and  citizens  of  the  city  of  Worcefter,  they  returned 
a  bye  law,  which  ordered  the  penalty  to  be  recovered  by 
a£Uon  of  debt,  in  the  name  of  the  chamberlains,  indie 
court  of  Pleas,  held  for  the  faid  city,  and  not  eljtwhere:  a 
motion  being  made  for  a  procedendo,  and  caufe  ordered  to 
be  ibewn  againft  it,  a  preliminary  doubt  was  made  by  the 
court,  whether,  in  any  other  cafe  but  that  of  the  city  of 
London,  the  validity  of  a  bye»liw  could  be  difputed  in  this 
fummary  way ;  they  agreed,  that  this  method  had  been 
always  pradlifed  on  bye  laws  returned  into  this  court,  t6 
writs  of  habeas  corpus  cum  caufa,  directed  to  the  courts  of 
the  city  of  London;  but  they  did  not  recolle£l  any  inftan- 
ces  where  the  fame  thing  had  been  permitted,^in  the  cafe  of 
any  other  city  or  corporation. 

Mr.  Juftice  Denifon,  who  had  originally  ftarted  this 
doubt,  faid,  that  fuch  a  diflin£lion  between  the  city  of 
London,  and  all  other  cities  and  corporations,  might,  per* 
haps,  arife  from  particular  methods  of  recovery  being 
cftablifhed  by  the  cuftoms  of  London,  which  cannot  ho 
purfued  in  this  or  any  other  court:  for  on  thefe  writs  of 
habeas  corpus,  the  perfons  to  whom  they  are  dire^Ud^ 
muft  fhew  a  good  caufe  of  detainer;  and  if  this  court  caa- 
not  proceed,  as  the  cuftoms-  of  London  authorife  their 

(tf)  Dia.  in  Writoo  v.  Clerk,  Carth.  n. 

courts 


174  ^HB  ^Aw 


CHAP.  VI. 

OF  THE  MANKER  IN  WHICH  CORPORATIONS  ARE 

VISITED. 

In  order  to  maintain  the  peace  and  good  government  of 
corporations,  and  to  fecure  their  adherence  to  the  purpofes 
of  dieir  inftitution,  the  law  has  appointed  a  tribunal  to  in- 
Ipeft  die  conduct  of  their  internal  affairs,  and  to  whofe  de- 

'  cifion  all  difputes  arifing  within  them  may  be  referred. 
This  tribunal,  in  the  cafe  of  eleemofy nary  and  ecclefiafti« 
cal  (a)  corporations,  is,  in  general,  that  of  a  privab  vifltor ; 
of  all  other  corporations,  the  court  of  King's  Bench.  The 
Jatter  exercifes  its  viiitatorial  jurifdi&ion  in  two  diiQerent 
ways;  by  writ  of  mandamus,  and  information  in  tbena-* 
lure  of  quo  warranto.     The  prefent  chapter,  therefore, 

'may  properly  be  divided  into  three  different  le<9ions. 

'Firft,  Of  a  private  vifltor.  Second,  Of  the^writ  of  man- 
damus. And  Third,  Of  an  iillbrmation  in  the  nature  of 
quo  warranto* 


Section   L 

Of  a  private  Fifiton 

The  office  and  charadber  of  a  vifltor,  feem  to  have  been 
recognized,  and,  indeed,  well  known  to  the  law,  fo  early  as 

{a)  Per  Holt^  C.  }.  i  Show.  252,  an  ecckHaftical  corporation  al- 
ways has  a  vliitor,  and  therefore  a  mandamus  was  never  known^to  hare 
•beco  moved  for  an  abbot  or  prior* 

the 


OF    CORPORATIONS.     :  I75 

At  beginning  of  the  reign  of  Edward  the  third.  In  the 
year  books  {a)j  auid  the  book  of  aiEzes  [b)^  is  the  follow- 
ing cafe,  which  has  been  frequently  cited,  and  made  the 
fubjefl  of  comment.  One  Henry  Shirak,  as  warden  of  the 
hofpital  of  St.  Mary  Magdalen  of  Ripon,  brought  an 
affize  of  novel  difTeiiinagainft  the  archblfliop  of  York,  and 
William  Poplington,  and  made  his  plaint  of  twelve  meC- 
fuages  and  two  carues  of  land,  one  of  the  mefiiiages  being 
the  hofpital ;  the  archbifhop,  by  his.  bailiff,  pleaded  the 
genertl  iSiit^  nul  torti  nul  dijiifin :  Poplington,  in  proper 
perfon,  anfwered  as  tenant,  and  faid,  that  the  plaindfi^ 
Henry,  was  formerly  warden  of  the  hofpital ;  that  the  ordi* 
nary  of  the  place  viiited  him,  and  for  de&ult  found  in  him 
deprived  him ;  and  that  afterwards  the  archbifhop,  who 
was  patron^  finding  the  hofpital  void,  collated  the  defen- 
dant; to  this  the  plaintiff,  Shirak,  replied,  that  King  Ed- 
ward the  fecond,  by  his  charter,  of  which  the  plaintiff 
made  proferty  gave  him  the  wardenfhip  for  life,'  to  hold  as 
his  freehold,  and  directed  a  writ  to  the  efcheator,  to  deliver 
feifmto  him,  which  the  efcheator  accordingly  did :  that 
one  of  the  twelve  meffuages  was  the  hofpital,  which,  to* 
gether  with  its  appurtenances,  was  lay  fee,  of  which  the 
warden  paid  great  and  fmall  tythes  to  the  parifh  church, 
and  was  taxed  among  the  laity,  and  not  among  the  clergy, 
fo  that  he  was  feifed  of  a  freehold  in  a  lay  fee  till  the  time 
of  the  diffeifin.  The  charter,  of  whiqh  profert  was  made, 
purported,  that  the  King  had  given  the  wardenfhip  as 
above,  the*  prefentation  belonging  to  him  by  reafon  of  the 
vacancy  of  the  fee  of  York. 


(a)  8  Ed..  3,  69, 70>  thefe  are  the  felios  taken  from  the  beginning  of 
the  year,  but  in  fome  cafes^  the  volume  in  which  this  cafe  is^  is  folioM 
from  the  beginning  of  the  volume,  and  69, 70  correfpond  with  437, 43s. 

{b)  Fol.  18^  19,  8  Ed.  3.  t>l.  291 31, 

On 


1 76  T  H  B      L  A  W 

On  behalf  of  theplaintifl;  it  was  objcacdto  the  plea, 
that  it  did  not  fliew  wh§  was  the  ordinary,  who  vidted  and 
deprived  the  plaintiff;  to  which  it  was  anfwered,  that  it 
was  fufficient  to  fliew  diat  he  was  viiiced  by  the  ordinary 
of  the  place :  it  was  further  objeded,  that  the  plea  ought 
to  have  (hewn  a  Jpecial  caLuft  for  which  the  plaintiff  was 
deprived ;  to  which  it  was  anfwered,  that  the  ordinary  was 
the  fole  judge  of  the  caufe,  and  that  whether  the  deprivation 
was  by  right  or  by  wrong,  the  court  could  not  enquire. 

With  refped  to  die  plaintiff's  replication,  it  was  iaid, 
that  as  the  prefentation  to  the  hofpital,  was  in  right  of  the 
archbifliop,  the  plaintiff  could  have  no  other  eftate  in  it, 
by  the  gift  of  the  King,  than  he  would  have  had  by  the 
gift  of  the  archbifliop  himfelf :    that  every  warden  of  a 
hoipital  was  vifitable ;  by  the  patron,  if  it  were  lay;  and 
by  the  ordinary,  if  it  were  fpiritual :  and  that  if  the  plaintiff 
had  been  in  bSt  vifited  and  deprived,  and  the  wardenfhip 
given  to  the  defendant  Poplington,  the  former  could  not 
recover  againft  the  latter;  but  that  if  he  was  not  vifited, 
but  oufted  wrongfully  by  the  defendants  without  procefs 
iffued  againft  hintj  he  might  recover  in  the  affize.    It  was 
alfo  fiud,  by  Herle,  that  the  archbifhop  vns  ordinary ;  that 
it  was  confefled,  by  the  pl^ntiff,  that  he  was  patron ;  and 
that  although  the  defendant  Poplington  had  pleaded  a  vifi- 
tation  in  the  charader  of  ordinary,  yet  if  it  were  found  by 
the  aiEze,  that  the  archbifliop  vifited  not  as  ordinary,  but 
as  patron,  the  plaintiff  could  take  nothing.-^-To  this, 
however,  the  plaintiff's  counfel  objected,  and  aflerted  he 
was  intitled  to  take  advantage  of  the  cenuiance  made  by   . 
the  defendant.-— What  was  the  event  in  this  refpe£l  does 
not  appear;  but  whether  the  defendant  might  or  might  not 
be  concluded  by  his  mode  of  pleading,  it  feems  a  fair  de-* 
duftion,  from  what  Herle  fays^  that  if  it  appear,  that  where 

the 


OF   CORPORA  ttONS.  177 

the  (ihiraiftcrs  of  ordinary  and  vifitor  at  common  law  unite 
in  the  fame  perfon,  he  vifits  in  the  character  of  ordinary, 
when  in  &ft  the  party  vifited  is  only  vifitable  by  the 
patron  or  common  law  vifitor,  the  vifitation  is  vofd,  though 
the  fame  perfon  might  have  vifited  as  patron  or  vifitor* 

In  the  difcuflion  of  the  fame  cafe  it  was  faid,  that  if  the 
plaintiff  was  vifitable,  and  adlually  vifited  and  deprived^ 
he  had  loft  his  name*  of  warden,  and,  therefore,  he  muft 
fue  to  recover  his  name  before  he  could  be  admitted  to  fudi 
in  afSze:  and  Scrope,  one  of  the  juflices,  mentioned  the 
cafe  of  an  ai&ze  of  novel  difieifin,  brought  by  the  warden 
of  an  hofpital  in  the  county  of  Suflexy  in  which  it  was 
alleged  againfl:  the  plaintiff,  that  he  had  been  vifited  aitd 
deprived  for  default  found  in  him,  to  which  he  replied) 
that  he  had  never  gone  before  vifitors,  nor  ever  been  called 
in  judgment  before  them;  but  as  he  confefled  that  he  was 
vifitable,  and  as  he  had  been  deprived,  the  juftices  would 
not  award  the  ai£ze,  without  his  fuing  firil  to  reverfe  what 
the  vifitors  had  done ;    on  which  the  Queen,  who  was 
patronefs  of  the  hofpital,  fent  to  the  juftices  and  claimed  * 
the  conufance  of  the  plea,  as  belonging  to  her  in  right  of 
her  patronage ;  and  the  conufance  was  granted.—A  dif« 
tili£Hon  of  the  fame  kind  was  afterwards  taken  (a)  by 
Parning,  a  juftice  of  the  Common  Pleas,  "  that  where  a 
warden  of  d  chapel  is  deprived  by  one  who  has  no  title,  he 
may  have  an  aflize  to  reftore  him  by  the  nanie  of  warden  ; 
but  where  the  ordinary,  who  has  a  title,  or  more  prdperly, 
a  jurifdidion,  deprives  him,  there  he  muft  firft  recover  his 
name  of  dignity  before  he  can  have  an  aifize/* 

What  is  meant  by  the  party  "  firft  fuing  to  recover 
his  name  before  he  x:an  be  adnutted  to  fue  in  ai&ze,''  does 
not  appear  very  plain:  it  cannot  certainly  mean  that  he 

(a)  13  Aff,  %,  cited  4.  Modi  i^i. 

V9I1,*.  n.  N  fliould 


I^J  THE     LAW, 

(houldhave  an  a^ion  on  the  cafe  to  recover  his  name }  foi: 
if  the  ordinary  courts  vf'ill  not  take  conuiance  of  the  fen* 
tcnre  of  the  vifitqr  in  an  aflize,  on  the  principle  that  he 
ha$  an  exclufive  jurifdidion,  fo^  on  the  fame  principle^ 
they  could  not  inveftigate  the  propriety  of  the  fenl^enee  in 
an  adion  to  recover  the  name :  it  cannpt  mean  that  he 
(hould  firft  fue  to  the  vifttor  who  deprived  him>  for  by 
giving  judgment  that  he  fliould  recover  his  name,  the  vifitor 
of  courfe  enables  the  plaintiff  to  fet  ailde  his  own  fentenc^ 
which  it  is  not  very  likely  he  will  do. — ^The  only  meaning 
therefoiPe^  which  it  iieems  poffible  to  attach  to  this  obferva* 
tion,  feems  to  be-  this  ^  ^  that  before  the  party  deprived  can 
fue  an  affize  againft  the  perfon  who  has  been  put  in  his 
r<ipm»  he  muft  appeal  from  the  fentence  of  the  viiitor  to 
the  next  iaperior,  if  there  be  one,  to  whom,  by  the  law, 
am  appeal  lies  from  the  vifitor's  fentenct,  as  fronv  the  bilhop 
yff^Mk  he  vifits  as  ordinary  to  the  archbiiho{>,  in  ordei^  to 
have  the  fentence  reverfed. — ^If  this  be  the  true  meaning  of 
Hffi  obfes vadon,  then  we  muft  fuppofe,  that  m  the  caft. 
cited  by  Scrope,  the  Queen  being  patronefs,  had  $ippoin(ed- 
intermediate  vifitors,  with  the  right  of  appeal  to  he«:felf«-«>> 
But  on  the  fame  principle  it  follows,  that  in  the  cafe  of  a 
lay  faofpital,  where  the  patron,  or  fome  one  appointed  by 
the  founder,  is  vifitor,  who  has  no  fuperior  to  whom  an^ 
appe^  can  be  made,  the  party  deprived  by  the  vifitor  ha& 
no  remedy  by  affize. 

Thx9  conclufton  is  indeed  contrary  to  that  of  Sir  Ed«- 
ward  Cokcy  who,  in  James  Bagg's  cafe  (a),  founds  on  this 
cafe  of  Shirak,  this  diftinSion,  ^^  that  if  a  layman  be  patron 
of  an  hofpital,  he  may  viilt  it,  and  depofe  or  deprive  the 
mafter,  fox  good  eauje'^  but  if  he  be  deprived  without  jufi 
€fm[e^  he  ihaU  have  an  affize,  becaufe  he  has  m  otbir  r&- 

{a)  ix  Coi;  $9«  b^ 

medy^l 


OFCORPORATIONS.  I^g 

medy ;  buf  if  tHq  ordinary  deprive  a  mafter,  who  is  ecck— 
fiaftlcal,  without  a  catife^  he  (hall  not  have  an  affize>  be- 
caufe  he  has  another  remedy  by  appeal." 

This  opinion  of  Lord  Coke,  howe^'er,  is  by  Holt,  C.  J. 
afcribed  to  a  note  in  Dyer  {a\  at  the  end  of  the  cafe  of 
Dr.  Coveney,  who  being  prefident  of  Magdalen  College, 
was  deprived  by  the  vilitor,  not  in  the  chara<£ler  of  ordinary,  . 
but  in  that  of  vifitor ;  and  the  queftion  was,  whether  aa 
appeal  would  lie  from  the  vifitor's  fentence  to  the  King^ 
for  it  was  held  there  could  be  none   to  the  archbijhop^  be- 
caufe  the  a£l  was  done  not  in  the  charafter  of  ordinary,  but 
of  vifitor.     **  From  hence  it  follows,"  fays  the  reporter, 
**  tKat  Dri   Coveney,  who  was   deprived,  ihall  have  an 
aiHze."-—OiF  which  conclufion  Holt  fays  (i),  "and  that 
wa§  the  caufe  of  the  opinion  of  Lord  Coke,  in  James  . 
Bagg's  cafe,  who  there  cites  the  books  8  Ed.  3,  and  8  AiQ*. 
for  this  diftinftion.    But  if  we  examine  thefe  books,"  con- 
tiiiues  Hblt,  "  no  fuch  diftinftion  is  there  to  be  found  j  the 
party  is  concluded  in  the  one  cafe  as  well  as  in  the  other : 
therefore  there  is  an  end  of  that  opinion,  for  the  founda- 
tion fails,  and  is  not  warranted  by  any  authority*    But 
befid^s,  it  is  reafonable  to  fufpeft  that  cafe  not  to  be  law, 
when  the  thing  is  impracticable,  which  it  is  brought  to 
prove,-— The  head  of  a  college  cannot  maintain  an  ai&ze 
for  his  office  of  headfliip ;  he  hath  not  fuch  an  cftate  as  will 
bear  it :  the  head  of  fuch  a  body  cannot  maintain  an  affize 
foi'his  headfbip,  for  he  hath  no  fole  feifin  s-the  whole  body 
of  the  college  have  an  intereft  in  the  eftate;  the  head  has    , 
not  a  title  .to  a  penny  of^the  revenues  in  his  own  right,  till 
byconfent  they  be  privately  diyided  and  diftributed  s  and 
then  it  is  his  own  perfonal  property  as  an  individual,  arid  . 
not  as  aperfon  having  a  corporate  right." 

{a)  Dyer,  ao9.  {b)  *  Sktnn.  4S7;    2  Ttoi  Rep.  3^5. 

N  2  By 


I80  THB    LAW 

By  the  common  law,  all  ^iritual  perfons  and  corpora-* 
tions,  as  parfons*  vicars,   deans,  prebendaries,  deans  and 
diapters,  are  fubjeA  to  the  vlfitation  of  the  ordinary ;  as 
were  formerly  j^iW/tfi^/horpitals,  abbies,  and  priories  (tf). 
But  free  chapels  and  donatives  are  exempt  from  the  viiita- 
tion  of  the  ordinary,  and  fubje<Sl  to  that  of  the  patron 
only,  whether  that  patron  be  the  King  or  a  fiibjed  (b) ; 
and  the  King  vifits  either  by  his  chancellor,  or  by  com- 
miffioners  fpecially  appointed ;  a  fubje£l  patron,  either  by 
commiffioners  or  in  peribn  (c).   There  were  likewife  ibme 
abbies  and  priories,  andy^/V/V^a/hoipitals,  andfomecha* 
pels  and  churches  belonging  to  abbies  and  priories,  which 
were  fpecially  exempted  from  the  vifitation  of  the  ordinary, 
and  fubjefl:  only  to  that  of  the  pope  j  and  when  the  jurif- 
diSion  of  the  pope  was  aboliihed  by  ft.  25  H.  8,  c.  21 
the  exemption  was  continued  (d)j  and  the  vifitation  ordered 
to  be  by  commiflion  from  the  King  under  the  great  feal.— - 
But  by  ft.  31  H.  8,  c,  13,  f.  Z3,  all  churches  and  chapels 
belonging  to  the  monfiftries  and  other  religious  houfes  dif- 
fotved  by  that  ftatute,  which  were  exempted  from  the  vifi- 
tation of  the  ordinary,  were  fubjeded  to  the  vifitation  of 
the  ordinary  of  the  diocefc,  or  to  that  of  fuch  perfon  or 
perfons  as  the  King  ihould  appoint. 

But  the  vifitation  of  the  ordinary  extends  only  to  mat- 
ters of  fpiritual  concern  ;  he  has  no  jurifdiSion  as  ordinary 
over  the  temporal  interefts  of  a  fpiritual  corporation,  or 
matters  affefting  its  conftitution.  The  bifhop,  however, 
is  frequently  the  temporal  as  well  is  fpiritual  vifitor  of  the 
dean  and  chapter :  but  he  has  not  the  former  charadler  as 
bilhop,  as  he  has  the  latter  (^'),— And  where  there  is  no 

ia)  a  Rol.  Abr.  229,  230, 131.     10  Co.  31. 
ib)  Co.  Lit.  344,  a.        (0  Co.  Lit. 96,  a.  344,  a.       {d)  S.  20. 
ie).  Vid.  Rex  v.  Bifti«p  of  Cheftcr,    x  Wilf,  %o6.     Biihop  of 
Cliichcftcr  v.  Harwood,  x  Term  Rep.  650. 

vifitor 


OP    CORPORATIONS.  l8l 

vifitor  exprefsly  appointed  over  a  fpiritual  corppration,  the 
jurifdidtion  is  in  the  King's  Bench  (a). 

The  right  of  appointing  a  vifitor  to  an  eleemotynarjr 
corporation,  as  well  as  of  pVefcribing  ftatutes  to  it,  is  in 
the  founder,  whether  the  King  or  a  fubjed  (b)  |  and  if  no 
vifitor  be  appointed,  the  founder  and  his  heirs  are  vifitors 
by  the  common  law;  and  by  39  £1.  c.  5,  which  gives  per- 
miiSon  to  incorporate  workhoufes  for  the  poor  by  deed 
inroUed,  it  is  enabled,  ^^  that  they  ihall  be  governed  and 
vifited  by  fuch  perfon  or  perfons,  bodies  politic  or  corpo* 
rate,  their  heirs,  fucceflbrs,  or  affigns,  as  fhall  be  nomi* 
nated  or  ailigned  by  the  founder  or  founders,  their  heirs  or 
affigns,  according  to  fuch  rules,  ftatutes,  and  ordinances 
as  'ihall  be  eftabliflied  by  the  founder  or  founders,  his  or 
.their  heirs  or  aiSgns^  in  v^iting  under  his  or  their  hand  and 
feals"  (c). 

In  the  reign  of  Henry  the  fifth,  the  property  of  many 
hofpitals  having  been  wafted  or  miiappjied,  a  ftatute  (d) 
was  made  by  which  the  ordxnari£s,  by  virtue  of  the 
King's  commiflion,  were  commanded  to  inquire  into  the 
manner  of  the  foundation  of  fuch  hofpitals  as  were  of  the 
foundation  and  patronage. of  the  King,  and  of  the  ftate 
and  government  of  them,  and  certify  their  inquifitions  into 
Chancery  ;  with  refped  to  other  hofpitals  of  the  founda* 
tion  and  patronage  of  fubje£ks,  they  were  to  make  the 
iamp  inquiries,  and  corre<S);  and  reform  the^riiufes,  accord* 
ing  to  the  laws  of  holy  church,-*-This  ftatute,  it  is  evi* 
dent,  gave  only  a  temporary  authority  to  the  ordinariesy 
and  confequently,  after  the  expiration  of  their  ^ommiffioni 

(«)  Jlex  V.  Biihop  of  Chcftcr,  *  Str.  798. 

{b)  Vid.  fupra  the  cafe  of  Shirak,  and  4  Mod.  IH*    ZQ  Co,  3^,  a* 
I  Vc2. 47«;    Vid.  vol.  i,  50^  51. 
(f)  Vid.  vol.  I,  57,  6o»  {J)  %  H*  5,  c,  i. 

,      N  3  th« 


l82  T  H  E     L  A  W 

the  fuperintendance  of  the  hofpitals  reverted  to  the  heirs 
of  their  refpe£live  founders,  or  vifitors  appointed  by 
them* 

By  the  14  EI.  c.  5,  the  founder  of  an  hofpital,  if  no 
vifitor  was  appointed,  was  to  vifit  during  his  life,  and  after 
his'death  the  bifhop  of  the  diocefe^  or  his  chancellor. 

By  the  ftatute  43  £1.  c.  4,  after  reciting.  ^^  that  lands> 
tenements,  rents,  annuities,  profits,  hereditaments,  goods> 
chattels,  money,  and  flocks  of  money  had  been  theretofore 
given,  limited,  appointed,  and  affigned,  as  well  by  the 
Queen  and  her  predeceilbrs  as  by  others ;  fome  for  the  re- 
4ief  of  aged,  impotent,  and  poor  people,  fome  for  the 
maintenance  of  fick  and  maimed  foldicrs  and  mariners, 
Schools  of  learning,  free  fchools,  ^nAfcholars  in  the  univerfi- 
ties ;  fome  for  the  repair  of  bridges,  ports,  havens,  caufe- 
•ways,  churches,  fea  banks,  and  highways;  fome  for  the 
education  and  preferment  of  orphans ;  fomt /or  or  towards 
relief,  flock,  or  maintenance  for  houfes  of  correction ; 
ibme  for  the  marriage  of  poor  maids  ;  fome  for  the  fup- 
porfation,  aid,  and  help  of  young  tradefmen,  handicraftf- 
Tnen,  and  perfons  decayed ;  and  others  for  the  relief  or  ^e 
redemption  of  prifoners  or  captives,  and  for  the  aid  and 
leafe  of  poor  inhabitants  concerning  the  payments  of  fif- 
teendis,  fetting  out  of  (bidiers,  and  other  taxes :"  and 
complaining  ^  that  futh  lands,  &c.  had  net  been  employed 
according  to  the  charitable  intent  of  the  givers  and  founders, 
by  reafoA  of  frauds,  breaches  of  trilft,  and  negligence  in 
thofe  that  fhould  pay,  deliver,  and  employ  the  fame :"  it 
was  enaflied,  "  that  it  fliould  and  might  be  lawful  for  the 
lord  chancellor  or  keeper  of  the  great  feal  of  England, 
for  the  time  being,  and  for  the  chancellor  of  the  duchy  of 
Lancafter  for  the  time  being,  iqr  lands  within  the  county 
palatine  of  Lancafter^  from  time  to  time^  to  ^ward  com* 

miilions 


OF     CORPORATIONS.  I'gj 

nuffions  under  the  great  feal  of  England,    or  the  feal  of 
.  the  county  palatine,  as  the  cafe  fhould  require,  into  all  or 
any  part  or  parts*  of  the  realm  refpeftively,  according  to 
their  feveral  jurifdidlions,  to  the  bifliop  of  every  feveral 
diocefe  and  his  chancellor,  in  cafe  there  fhouM  be  any 
bifhop  of  the  diocefe  at  the  time  of  awarding  the  com- 
mif&on,  and  to  other  ]peT[ons  of  good  and  found  behaviour^ 
authorifrng  them,  or  any  four  or  more  of  them,  to  enquire, 
as  well  by  the  oaths  of  twelve  lawful  men  or  more  of  the 
county,  as  by  all  other  good  and  lawful  ways  and  means^  of  all 
and  fingular  fuch  gifts,  limitations,  afSgnments  and  appoint- 
ments aforefaidj  and  of  the  abufes,  breaches  of  trufts,  neg- 
ligences,  mifemployments,    not   employing,    concealing, 
defrauding,  mifconverting,  or  mifgovernment  of  any  lands, 
tenements,  rents,  annuities,  profits,  hereditaments,  goods* 
chattels,  money,   or  ftocks  of  money  theretofore   given, 
limited,  appointed,  or  ailigned,  or  which  fhould  thereafter 
be  given,  limited,  appointed,  or  afCgned,  to  or  for  any  the 
charitable  and  godly  ufes  before  rehearfed;  and  that  after 
the  (aid  commiiHoners,  or  any  four  or  more  of  them,  on 
calling  the  parties  interefted  in  any  fuch  lands,  tenements, 
&c.  ihould  make  enquiry^  by  the  oaths  of  twelve  men  or 
more  of  the  faid  county,  to  whom  the  faid  parties  interefted 
fhould  and  might  have  and  cake  their  lawful  challenge  and 
challenges ;  and  on  fuch  enquiry,  hearing,  and  examina- 
tion, fet  down  fuch  orders,  judgments,  and  decrees,  that 
the  faid  lands,  tenements^  rents,  annuities,  profits,  goods, 
chattels,  money,  and  ftocks  of  money,  might  be  duly  and 
faithfully  employed  to  and  for  fuch  pf  the  charitable  ufes 
and  intents  before  rehearfed  refpeftively,  for  which  they 
were  given,  limited,  afSgned,  or  appointed  by  the  donors 
and  founders ;  which  orders,  judgments,  and  decrees,  not 
biing  contrary  or  repugnant  to  the  orders^  Jt^tutes^  cr  decrees 

N4  'f    ■ 


l8^  TItE    LAW 

9f  the  donors  6r founders^  ihould  (land  firm  suid  be  good^ 
and  fliould  be  executed  accordingly,  until  the  fame  fhould 
be  undone  or  altered  by  the  lord  chancellor  of  England,  or 
lord  keeper  of  the  great  feal,  or  the  chancellor  of  the 
county  palatine  of  Lancafter  refpe£^ively,  within  theii* 
feveral  jurifdi^ons,  on  the  complaint  of  any  party 
grieved.** 

By  f.  8,  all  orders,  judgments,  and  decrees  of  the  com- 
miiConers,  or  of  any  four  or  more  of  them,  are  to  be  cer? 
tified  under  the  feals  of  the  faid  qommi^oners,  or  of  any 
four  or  more  of  them,  into  the  court  of  Chancery  of 
England,  or  of  the  county  palatirte  refpe£liyely,  withii^ 
the  time  limited  in  the  commifiiont 

By  f.  9,  the  lord  chancellor  of  lord  keeper,  and  the 
chancellor  of  the  duchy,  are  to  take  fuch  order  refpe£bively 
for  the  due  execution  of  the  decrees  of  the  commiffipners, 
as  to  either  of  them  fhall  feem  fit  and  convenient. 

And  by  f,  lo,  any  perfon  who  fhall  find  himfelf  grieved 
by  any  of  the  orflers  qr  decrees  may,  after  the  certificate^ 
complain  to  the  lord  chancellor,  or  lord  keeper,  or  the 
phancellor  ©f  the  4uchy  refpedKvely,  who,  according  to 
their  feveral  jurifdi£lions,  may,  by  fuch  courfe  as  to  their 
tUfifdom  Jhall feem  meetejly  the  circumftances  of  the  pafecpnr 
fidered,  proceed  to  the  examinatipn,  hearing,  a?id  deter- 
mination of  fuch  complaint  >  and  may  annul,  diminiih, 
alter,  or  enlarge  the  orders  or  decrees,  cpnfiftently  with 
equity  ai.d  good  confcience,  according  to  ^he  true  inten| 
^d  meaning  of  the  donors  and  founders. 

But  it  is  provided  that  ^is  zdi  ihall  npt  extend  to  lands, 
&c.  given  to  any  college,  hall,  or  houfe  of  learning  withiq 
the  univerfities,  or  to  the  colleges  of  Wpftminfter,  Eton^ 
pr  Winchefter,  or  to  any  cathedral  or  collegiate  church  \ 
;u;d  that  it  ibal{  np^  extend  tp  any  city  pr  to.^n  cor|>orate^ 

9F 


OF    CORPORATIONS*  185 

V 

pr  to  any  lands  or  tenements  given  to  the  ufes  mentioned  in 
the  former  part  of  the  ftatute  within  fuch  city  or  town 
corporate,  where  there  is  a  fpecial  governor  or  governors 
appointed  to  govern  or  dire£l  fuch  lands,  &c«  nor  to  any 
college,  hofpita],  or  free  fchool,  which  have  fpecial  vifitors 
or  governors,  or  overfeers,  appointed  them  by  their 
founders. 

It  is  likewife  provided,  that  this  a£l  fhall  not  be  pre- 
judicial to  the  jurifdi£tion  or  power  of  the  ordinary. 

Th?  proyifo,  with  rpfpeft  to  pities  and  towns  corpo- 
rate, extends  to  a  gift  to  a  corporation,  to  be  employed  in 
another  corporation,  or  to  be  eipployed  by  the  mayor  in 
thc/ame  corporation :  and  to  a  ^ift  to  ^n  hofpital  in  repu- 
tation, which  has  a  governor;  as  to  th^  poor  knights  of 
Windfor,  for  the  dean  and  canons  of  Windfor  ^P  their 
governors,  appointed  by  the  founder  (<?)• 

But  the  provifo  does  not  extend  to  a  gift  to  a  corpo» 
ration  not  in  exift^nce  at  the  time  pf  the  a£l,  nor  to  a  gift 
V^SLdcy^nce  the  a£l,  to  ^  corporation  v^hich  was  then  in  ex- 
iftence:  nor  to  ^W^  given  tp  a  corporation,  fpr  it  fpeaks 
pnly  of  lands  and  tenements  s  nor  to  a  gift  to  a  corpo^ 
ration,  which  is  not  tq  be  employed  in  th^t  or  any  other 
corporation  (h) :  npr  to  a  gift  made  to  the  governors  or 
truftees  of  a  fchool,  to  be  laid  out  on  an  obje£l  npt  con-» 
nested  with  the  purpofe  of  their  inftitiition^ 

Thus,  where  lands  were  given  to  the  governors  of 
Harrow  fchool,  as  truftees,  on  truft  to  employ  all  the 
profits  yearly  towards  repairing  and  amending  the  com- 
mon highway,  from  Edgeware  tp  Londpn,  when,  and  as 
pften,  and  in  fuqh  manner  as  th<?y  ftiPuW  think  fit  j  and 
that,  if  it  fbould  afterwards  happen,  that  the  highway  froni 
pdgeware  to  London  fhould  be  fufficiently  amended,  or 


(a)  Pull's  Charitable  Vfes^  17%  (^}  Id.  ibid^ 


ftpurd 


1^6  THB    lAW 

fliould  not  require  the  whole  profits  to  be  laid  out  on  if, 
Aen  tlity  (hould  lay  out  on  the  road  from  Harrow  ta 
London,  the  whole,  or  fo  mnch  as  fliould  remain  after  re- 
pairing the  other  road :  an  information  being  filed,  by  the 
attorney  general,  againft  the  governors,  on  the  ground  that 
liicy  had  expended  thefe  profits  on  the  Harrow,  which 
fhould  have  been  all  laid  out  on  the  Edgeware  road ;  it 
vrt&  obje^ed,  on  behalf  of  the  defendants,  that  the  court 
had  no  jurifdiAion,  becaufe,  where  no  fpecial  vifitor  was 
appointed,  the  vifitatorial  power  reiulted  to  the  heir  of  the 
founder  j  and  therefore,  though  no  fpecial  vifitor  was  here 
appointed,  this  cafe  came  within  the  provifo  of  the  ftatute, 
and  no  commiffion  could  iflue ;  and  it  was  only  in  the  cafe 
where  a  commiffion  could  iflUe,  diat  the  court  of  chancery 
had  jutifdidlion. — The  lord  chancellor  (j)  admitted,  that 
the  true  confirudtion  of  the  provifo  was,  that  where  a 
cdlege,  hofpital,  or  (chool  was  founded,  and  a  fpecial 
▼ifitor  was  appointed,  or  there  was  a  vifitor  by  operation- 
of  law,  the  commiffion,  by  virtue  of  that  ftatute,  (hould 
not  interpofe;  and  that,  therefore,  if  this  informatk>n  had 
been  for  the  revenue  of  the/choaly  the  objedlion  to  the  ju- 
IxfdiAion  might  have  applied }  but  this,  he  obferved,  was 
a  diftinft  charity  from  the  fchool,  a  collateral  truft  with 
which  the  vifitor,  if  there  was  one,  had  nothing  to  do  5 
and  therefore  was  properly  within  the  jurifdi£Uon  of  the 
court  (i). 

'Where  no  fpecific  provifion  is  made  for  the  regulation 
and  management  of  a  charity,  the  court  of  chancery,  by 
virtue  of  its  general  jurifdiSion,  takes  cognizance  of  it, 
by  information,  in  the  name  of  the  attorney  general,  and 
lince  this  ftatute,  by  commiffion  in  all  cafes  within  the  ge- 

{a)  Hardwicke. 

(b)  Attorney  gen.  t.  governors  of  Harrow  fcfaool,  2  Vef.  551  • 

neral 


OP     CQRPQRA7tONS.  I S7 

neral  ptirview  x>f  the  ^atutfe;,  j^d  xupt  coioi^  widiin  the 
exceptioa  of  ,the  praviib.  Bu^  where  there  is  a  chiiftef, 
giving  proper  power89  the  charity  siiift  be  i:egulated  in 
the  manner  in  wbich  the  charter  has  pointed  out;  aad 
where  there  is  a  local  vi/itor  the  court  of  chancery  hsis 
no  jurifdi£i:ion  over  any  obje<Sl  within  the  cognizance  of  U^e 
vifitor{<7). 

Where  the  perfons,  for  wb^e  benefit*  a  charity  is 
eftablifhe.d,  are  not  themfelves  incorporated,  hul  tnifiees  opr 
governors  are  appointed,  as  i^  ^e  cafe  of  Sutton's  boC^ 
piul  {b)y  the.  governors  have  a  kind  of  vifitatorial  p9W«|r 
with  refpedl  to  the  obje£b  of  the  charity;  hut  where  no 
viiitor  is  exprefsly  appointee!,  and^  the  ieg;^  eftate  of  the 
endowment  is  vefted  in  ^he  governors,  the  latter,  as  to  tbie 
management  of  the  re  venires,  are  fubje£l  to  the  juriiidL6liog 
of  the  court  of  Chancery. 

'  T^E  free  granimar  fchopl  of  Birmingham  was  founded 
by  King  Edward  the  (fthj  who  endowed  it,  and  by  ktter$ 
patent  appointed  perpetual  governors  with  power  to  make 
]aws  and  ordinances  for  the  better  government  of  the 
fchool;  but  by  the  letters  patent  no  exprefs  vifitor,  wa&ap* 
pointed,  ^nd  the  legal  eftate  of  the  endowment  was  Vfft^d 
in  thefe  governor3. 

A  COMMISSION  having  iflued,  under  the  great  liral, 
to  infpedt  the  management  of  the  governors,  it  wa$  ob* 
jef^ed,  that  the  King  having  appointed  governors,  bad,  by 
implication^  niade  them  vifitors,  the  confequence  of  vvhick 
Vras,  that  according  tp  the  exprefe  words  of  Lord  Coke,  in 
the  cafe  of  Sutton's  hofpital,  the  crown  could  notiflue.a 
comniifion  to  viGx  or  infpe£l  the  conduiSt  of  thoie  go- 
vernors* 

(tf )  3  Atk.  xq8.  Attorney  gen.  v.  Pr^ce,  a  Vcf.  318, 319,  Attoiney 
gen.  v.  Mi4d]etonr 

(A)  16  Co.  3t  a,  tid.  vol.  1,-54,  55*  »_,  \ 

"71.:    '  M  :■  .  '1-'  iHt 


'l88  T  H  K     L  A  W 

The  matter  was  firft  heard  by  Lord  Chancellor  Mac- 
clesfield, and  afterwards  by  Lord  King,  who  defired  the 
affiftance  of  Lord  Chief  Juftice  Eyre,  and  Lord  Chief 
Baron  Gilbert,  and  all  three  agreed,  that  the  commiffion 
was  good;  they  conceived  it  to  be  unreafonable  and  of 
mifchievous  confequence,  that  where  governors  were  ap- 
pointed, thefe,  by  conftru£tion  of  law,  (hould  be  vifitors, 
and  (hould  have  an  abfolute  power,  and  remain  exempt 
from  vifitation  themfelvcs.  ^They  therefore  held,  that  in 
thofe  cafes,  in  which  the  governors  or  vifitors  were  (aid 
not  to  be  aceountabUy  it  muft  be  intended  to  be  confined  to 
thofe  cafes  where  the  governors  have  the  power  of  govern- 
ment only,  and  not  where  they  have  the  legal  eflate,  and 
are  intrufled  with  the  receipt  of  the  rents  and  profits;  be- 
caufeit  would  be  of  the  mofl:  pernicious  confequence,  that 
a  pcrfon,  entrufted  with  the  receipt  of  rents  and  profits, 
efpecially  for  a  charity,  (hould  not  be  accountable,  how- 
ever he  might  mifcmploy  them.  They  held  further,  that 
the  word  "  governor"  did  not  of  itfelf  imply  **  vifitor," 
and  that  fuch  a  conftruAion  was  againft  the  common  and 
natural  meaning  of  the  word,  and  inftead  of  being  for  the 
t>enefit,  was  to  the  great  prejudice  of  the  charity  {a). 

In  the  cafe  of  Harrow  fchool,  before  mentioned  (^),  the 
lord  chancellor  admitted,  that  the  governors  wpre  not 
necejfarily  vifitors,  and  confequently,'  that  they  might  be 
fiibjefl  to  the  jurifdidlion  either  of  a  vifitor  or  of  the  court 
0f  Chancery  with  refpeft  to  the  revenues,  though  they 
^ightbe  abfolute  with  refpedt  to  the  government  of  the 
ichooL 

3y  the  conflitution  of  Magdalen  college,  on  Blackheath, 
pnder  the  will  of  Sir  John  Morden  (r)^  the  truftees,  and 

the 

{a)  Eden  v.  Foftcr,  »P.  Wins.  315.  {hi)  P.  185. 

{c)  I  find  myfclf  under  the  necciOty  of  remarking,  that  if  Lord 
^ardtncke  was  the  great  nian  he  Is  generally  confidipred  tp  have  been« 

lie 


QF    CORPOIt  ATIONS.  189 

the  furvivors  of  them,  were  to  have  a  power  to  place  and 
diQ>lace  the  chaplain,  treafurer,  and  other  officers,  at  their 
will  and  pleafure,  and  to  make  bye  laws  and  rtdes  for  the 
regulation  of  the  charity,  and  for  the  government  and  con-^ 
ducSlof  thehoufe;    After  conferring  on  them  this  power, 
the  teftator  directed,  ^^  that  the  faid  governors  JhouldTxA 
might  vifit  the  (aid  college  once  a  year,  or  oftener,  if  they 
thought  fit:   at  which  time  they  were  to  infpe£t  the  trea* 
furer's  accounts,  and  alfo  to  examine  into  the  behaviour  of 
the  chaplain,  &c.  and  if  they  foimd  they  had  aded  dif- 
honeftly  and  improperly,  to  difplace  them,  and  put  other 
perfons  in  their  room :   and  likewife,  if  they  found  any 
merchants  immoral,  guilty  of  drunkennefs,  &c.  they  Jhould 
and  might  remove  them/* 

On  a  petition  prefented  to  the  Lord  Chancellor  Hard« 
wicke,  in  the  name  of  the  attorney  general,  at  the  relation 
of  one  Gray  and  others,  on  behalf  of  the  charity,  againft 
Sir  John  Lock  and  others,  truftees,  his  lordihip  is  made 
to  exprcfs  himfelf  thus :  "  At  prefent  the  queftion  is, 
whether  I  {hould  be  warranted  on  fuch  an  application  as 
this,  to  take  a  previous  ftep  to  reftore  thefe  perfons  to  their 
places  in  the  college.  It  is  incumbent  on  this  court  to 
fupport  the  charity.  It  is  likewife  incumbent  on  it  to 
maintain  and  guard  the  power  of  thofe  who  have  that  au- 
thority from  the  donor.     For  it  would  be  of  bad  confe- 

he  wa^  very  unfortunate  in  not  having  his  deciiions  reported  by  men  of 
accuracy  and  precifion.  In  Atkins  and  Vefey,  there  is  hardly  ever  a 
ftate  of  the  fa6ls  given  to  render  the  arguments  of  the  counfel  «nd  the 
judgment  of  his  lordihip  intelligible.  The  reader  is  left  to  coUefV,  from 
the  ailufions  of  eachi  fuch  an  iroperfeft  ftate  oT  the  cale  as  he  can,  and 
frequently  to  fupply,  from  conjeflure,  fomething  to  render  k  confiftent  . 
with  itfelf ;  and  his  lordlhip^s  judgment  is  generally  reported  in  a  man^ 
ner  fo  confufed,  and  in  language  fo  vague  and  incorre^>  thatit  is  diffi- 
cult to  eftablifh  upon  it  any  gonial  principlci 

'  quence 


lye^  THE    LAW^ 

qmoee  to  tha  ebarkm  Iftk&aasdmii^tifp^^mTimt&^S 
with  tke  flMPflteoMirt  of  it^  were,  ttpOfi  i9irfiiiftmce^'^ht 
gmfro0Ud  and  tttitn  ini$^ 

^If  thefe  wefie  to  be  tlieiinns  aieeite'  ohktfti  on  tile 
MBOtiofi  of  fooae  peidioners  of  an  hof^ital,  as  if  they  had 
t*rtied  oiA  a  perfen  frotB'  a  freeMold,  no  oKm  of  fbitunt!  or 
abUkiat  woidd  aniertake  fiioii  a  truft.  Sir  John  Monk^ 
hat  not  left  tbo  power  of  vifitimsf  ^  his  htfif,  ^/  /^<fiF  maded 
ftrf§a  C9^kntki9  of  Mr  cbmrkf.  IvF<o^  tht9  is^  very  ma^ 
teBaritodie  fifft  and  gceati  (foeftidn,  tile  authority  6ftllt^ 
truftees* 

**  I  AORSS^  that  wheie  thera^  are  gave¥jlors  wh6  ard^ 
Tifitors  Ukewili^  fo  iar  2»  relattfs  to.  the  eftaVes  of  this 
charity,  they  are  fubje£l  and  accountable  to  this  court. 
There  are  two  forts  of  authorities  here:  one  as- to  the 
maaageraen^  of  the  eflaie  and  revenue ;  the  other  as  to  the 
management  and-  goveititilent  of  the  houfe :  in  the  latter 
they  are  aUblute,  and  not  controulable  by  this  court.*-^-" 
Aa  to  the  queflion,  whether  they  have  an  arbitary  power 
to  remove  at  pieafare,- 1  wiH  give  no  abfohite  opinion,  but 
am  iiicUned  to  think  they  have  fuch  a  power  of  removing', 
widiout  hearing,  ot  giving  any  reafoh  for  fo  doing.  My 
reidbns  9re  tliefe:  by  theconftitution  of  this  charity,  they 
have  a  pown:  of  removing  the  chaplain^  treaforer,  and 
other  officers,  at  their  will  and  pleafure.  If  it  had  refted 
there,  there  is  no  doubt  but  they  might  have  done  it^  but 
it  is  infifted,  by  the  attorney  general,  that  there  is  anothei; 
claufe  reftraining  them.  But  I  think  the  latter daufe  is 
not  a  reftnuning  claufe,  nor  giv^  them  lefs  power,  but . 
only  Is^  an  in>un£lion  or  obligation  upon  them  to  remove 
for  fueh  genial  ofFonceS,  and  leaves  them,  iii  eVeVy  in- 
fisaice  befides,  to  a£)rat  their  diicretion.  But  afterwards,  in 
their  general  local  vifitation,  they  are  to  call  the  treafurer 

to 


OF    CORPORATIONS.  im 

to  account.  This  they  might  hav€*  done  by  virtae  of  tikA 
being  governors)  and  therefore  it  is  an  i£Jttn<%on.iipoa 
theia  to  iatpeSt  the  treafurer's  accounts^  &ۥ  Are  they  t9 
remove  the  officers  and  fervants  for  any  offence  timl  muft 
be  fupported  in  a  court  of  juAice,  with  the  fame  k^ 
nicety  as  in  the  cafe  of  a  freehold  ?  Is  the  chaplainr  or 
treafiirer  an  officer  for  life  ?  They  v9ouM>  if  fe,  be  equaSiy 
reftrained  from-  removing  them  zs  the  merchants  them^k 
felves.  As  to  die  merchants^  if  guilty  of  dnmbenn^' or 
any  debauchery,  then  they  ^tfiSf  and  may.,  by  wridng  unddr< 
hand  and  feal,  turn  them  out, 

^^  Thb  words  fiaU  and  may,  in  general  a^  of  fiarlia* 
ment,.  or  in  private  cohftitutions,.  are  to  be  conftrued  im- 
peratively :  they  mitft  remove  them.  On  the  whole  of 
this^  point,  I  am  of  opinion,  that  there  is  a  general  power 
of  amotion,  but,  as  I  iaid  before,  the  founder  has  laid  aa 
obligation  on  them  to  turn  them  out  for  the  ma^ara  erimintr^ 
if  I  may  fo  csdl  them.  ■  The  great  difficulty  with  me^ 
is^.  the  danger  of  making  a  precedent  ofreftoring  a  mere 
penfioner  of  an  faofpital,  on  the  application  of  the  penfioner 
himfelf.  Confider  what  number  of  great  hofpitals  them 
are  in  this  kingdom^  and  how  bad  the  confequence  would 
be  for  me  to  examine  too  nicely  into  thefe  aTnotims,  sa  if 
i^ freehold  of  a  perfon  were  in  queftiom  The  governors 
of  ^efe  hofpitals  every  day  turn  out  and' put  in,  and  therv 
would  be  no  end  of  fuch  enqurieswere  I  to  interfere'^  (tf). 

On  the  petition  of  two  pcrfons,  of  the  names  erf"  Heath 
and  Gilpio,  the  latter  being  reftor  of  Howtoiii,  Queen* 
Elizabeth  granted  a  charter  for  founding  a  free  firhool  and* 
alms-houfe:  governors  were  appointed  with  a  power^o- 
appoint  and  remove  the  mafter  and  uflier  of  the  fchool,  and 
lO  do  every  other  matter  neceilary  and  expedient  for  die 

(,a)  3  Atk.  164, 165, 

fcholars; 


191  TUB    t AW 

fcholars ;  ind  a  power  was  refenred  to  the  heirs  of 
and  the  fucceflbrs  of  GSpiny  as  redor  of  Howton,  to  ap-* 
point  governors  from  time  to  time,  and  to  remove  thofe 
governors  as  often  as  found  convenient. 

An  information,  in  the  name  of  the  attorney  general, 
having  been  filed  againft  the  mailer  and  governors,  on  the 
principle  of  the  court  of  Chancery  having  the  general 
fuperintendency  of  all  charitable  donations  and  trufts;  the 
principal  queft ion  was,  whether,* on  the  fuppofition  that 
there  exifted  a  juft  ground  of  complaint,  this  was  a  proper 
cafe  for  the  general  jurifdidion  of  die  courts  or  whether 
there  were  not  proper  vifttors  to  take  conufimce  of  it* 

The  lord  chancellor  (a)  (aid,  that,  from  the  nature  of 
this  foundation,  he  thought  the  application  to  the  jurifdic- 
t!on  of  the  court  of  Chancry,  was  improper,  and  that  re- 
courfe  ihould  have  been  had  to  another  method  of  pro- 
ceeding to  rectify  what  was  wrong  in  the  exercife  of  the 
power  given  over  this  charity ;  .this  foundation,  he  ob- 
ferved,  had  been  made  at  the  petition  of  two  private  perfons, 
by  charter  from  the  crown,  which  diftinguifhed  this  from 
cafes  on  the  ftatute  of  charitable  ufes,  or  cafes  before  that 
ftatute,  in  which  the  court  exercifed  jurrfiliftion  over  chari- 
ties at  large  (*) :  over  thefe,  the  King  had  a  general  jurif- 
di£tion,  becaufe  there  muft  be  fomewhere  a  power  to  re- 
gulate; but  where  there  was  a  charter,  with  proper 
powers,  there  was  no  ground  to  come  into  this  court  to 
eftablilh  a  charity ;  and  it  muft  be  left  to  be  regulated  in 
the^  manner  in  which  ^he  charter  had  direc^d,  or  by  the 
original  rul^  of  the  law.  Though,  therefore,  he  had  often 
heard  it  faid,  in  this  court,    ^^  that  where  an  infornution 

(ii)  Hardwicke. 

{b)  By  chanties  at  large,  his  lordfliip  means  charities  without  an  in* 
corporation^  or  not  eflabliihed  by  charter* 

was 


OF    CORPORATIONS.  I93 

was  brought  to  eftablifh  a  diarity,  praying  z  particular  re- 
lief, in  which  the.party  failed,  yet  the  information  ^as  not 
to  be  diftnifled,  but  there  muft  be  a  decree  for  the  eftablifh- 
ment;'*  this  was  to  be  underftood  as  applying  only  to 
charities  at  lai;ge,  or  charities  in  their  nature  hefor^e  the 
Jlatute  of  charitable  ufes  {a)y  and  not  to  the  cafe  of  charities 
incorporated,   eftablifhed  by  the  King's  charter  under  the 
great  feal.— — //  had  been  heldy  he  faid,   in  the  cafe  of 
Birmingham  fchool^  that  the  very  appointment  of  governors  of 
an  hofpital  would  give  the  vijitatorial  power.*' — "  The  refult 
was,  that,  had  the  queftion  refted  fingly  on  the  power 
given  to  the  governors,  he  fhould  have  been  of  opinion,' 
that  the  governors  were  vifitors."      But  it  had  been  ob- 
jefted,  he  faid,  that  here  the  eftate  and  revenue  were  vefted 
in  the  governors,  and'  that  then  they  could  not  be  vifitors, 
becaufe  they  could  not'  vlfit  themfelves.      This,  he  faid 
was  a  material  objection,  and  had  been'fo  held  in  the  cafe 
.  of  Sutton  Colfield{b\  becaufe  they  might  mifapply  the  re- 
venues;   but  it  had  never  been  held,  that  the  governors 
-  could  not  be  vifitors  merely  becaufe  the  legal  eftate  of  the 
charity  was  ve&cd  in  them.      This  refembled  almoft  ex- 
a£Hy  the  cafe  of  Sutton's  hofpital,  in  which,  is  to  this  point, 
the  leading  principle  was,  that  the  legal  eftate  of  the  cor- 
poration, being  vefted  in  the  governors,  did  not  exchide 
them  from  the  right  of  governing  and  vifiting;   for  that 
none  of  the  money  could  come  to  the  hands  of  the  gover- 
nors :  though,  if  they  had  been  to  receive  the  rents  and 
profits,  and  to  apply  them,  that  might  have  been  of  another 
confideration^  and  might  have  excluded  the,m*-    In  the  prefent 
cafe  the  governors  had  only  the  legaleftate  in  them,  not  re- 
ceiving the  revenue,  which  the  matter  did,  from  time  to 

(«)  It  feetiis  difHcuIt  to  attach  a  precire  meaning  to  the  words  here 
put  in  italics.  (^)  Duke's  Charitable  Ufts^i  68. 


Vol.  II. 


O 


time. 


194  THE    LAW 

time,  and  for  iK^hich  be  accounted.-^ In  another  refped,  in- 
deed, this  diiFered  from  the  cafe  of  Sutton's  hofpital,  that 
there  was  another  fuperintendancy  over  the  governors 
themfelves  j  and,  if  they  were  not  vifitors,  the  heir  of  Heath 
and  the  fucceflbr  of  Gilpin  were  certainly  vifitors,  for  the 
power  of  removing  governors  included  every  thing. 

On  the  whole,  he  was  of  opinion,  that  this  information' 
was  improperly  brought  in  refpeul  of  the  jurifdi6lion : 
"  and  certainly,  he  repeated,  there  were  fomewhere  vifitors 
of  this  charity  i  for  the  proper  place  to  apply  to  for  mif- 
behaviour,  would  be  to  the  governors ;  if  they  refufed,  it 
would  be  a  mifbehaviour  in  them ;  and  then  application 
ihould  be  made  to  the  re<Slor,&c*  to  remove  them  and  ap- 
point others.'*  {a). 

If  this  be  an  accurate  report  of  Lord  Hardwicke's  judg- 
ment, it  proves,  that  his  lordfhip  was  miftaken  in  his  re- 
coUedlion,  both  of  the  cafe  of  Birmingham  fchool,  and  of 
that  of  Sutton^s  hofpital.  In  the  former  it  was  fo  far  from 
being  held,  as  his  lordfhip  is  made  to  fay,  ^'  that  the  very 
appointment  of  governors  of  an  hofpital  would  give  the 
vifitatorial  power;*'  that  it  is  refolved,in  exprefs  terms,  that 
the  word  "  governor'*  did  not,  of  itfelf,  imply  "  vifi- 
tor"(^).-»— In  the  latter,  the  words  of  the  letters  patent 
arethefe:  "and  for  the  better  government  of  the  faid 
hofpital,  the  faid  Thomas  Sutton  during  his  life,  and  after 
his  deceafe  the  faid  governors,  for  the  time  being,  or. the 
moft  part  of  them,  or  fuch  and  fo  many  of  them  as  the 
faid  Thomas  Sutton  fhall,  by  his  writing,  under  his  hand 
and  feal,  thereunto  affign,  appoint,  and  nominate,  fhall  and 
may,  after  the  deceafe  of  the  faid  Thomas  Sutton,  have  fall 
power  and  lawful  authority,  to  vifit,  order  and  punifh, 

{a)  Attorney  gen.  v.  Middleton,  2  V'ef.  327. 
{b)  Vid.  a  P,  W,  J27.    Ante,  p*  i%%.  ' 

place, 


'I 


OP    CORPORATIONS.  I95 

place,  or  difplace  the  mafter,  preacher,  fchoolmafter,  ufher, 
poor  people,  fcholars,  members,  and  officers  of  the  faid 
hofpital,  and  every  of  them,  &c."  (a).  On  which  the 
words  of  Lord  Coke,  in  reporting  the  refolutioh  of  the 
court '  on  this  point,  are  th^fe :  "  To  be  vifited  by  the  go- 
vernors, &c.  that  is  explanatory;  for  in  this  cafe,  the  poor 
which  (hall  be  refident  in  the  houfe  of  the  charter-houfe, 
fhall  not  be  incorporated,  but  certain  perfons,  in  whom  the 
poffeffions  are  vefted,  who  fhall  not  be  refident  there,  but 
only  have  the  general  government  and  ordering  of  the 

poor  therein for  if  no  vifitor  had  been  appointed 

by  the  charter,  the  governors  fhould  vifit"  (b).  Here  Lord 
Coke  has  clearly  in  view,  only  the  fu peri n tendance  of  the 
condufi:  of  the  perfons  who  were  the  objefts  of  the  charity 
and  of  the  officers  of  the  houfe ;  as  to  which  the  gover- 
nors, as  governors,  are  certainly  vifitors,  whether  the  rents 
and  profits  pafs  through  their  hands  or  not. 

But  the  proper  diftin£lion  feems  to  be  this,  that  when 
governors  are  appointed  to  fuperintend  a  charity,  they  are, 
in  all  cafes,  vifitors  of  the  obje£ls  of  the  charity  j  when  the 
application  of  th^  revenues  is  not  immediately  intrufted  to 
them,  they  are  alfo  Vifitors  as  to  the  application  of  the  re- 
venues, and  the  court  of  Chancery  has  no  jurifdidion  over 
them;  but  when  the  management  and  application  of  the 
revenues  is  immediately  intrufted  to  them,  then,  as  to 
thefe,  they  are  fubjeft  to  the  controul  of  that  court. 

As  eleemofynary  corporations  are  the  creatures  of  the 
founder,  he  may  delegate  the  vifitatorial  power  gener;^!/*' 
or  fpecially;  if  he  appoint  a  general  vifitPr  without  re- 
ftraint,  as  to  any  particular  inflanc(?,  the  perfon  fo  confti- 
tuted  has  all  incidental  powers.  But  a  perfon  conftituted 
Tifitor  in  general  terms,  may  be  reftrained  as  to  particular 

(a)  10  Co.  13,  a.  (b)  10  Co.  31,  a. 

O  z         '  inftances. 


196  THE    LAW 

inftahces.  So,  the  founder  may  appoint  a  ^^aW  vifitor 
for  a  particular  purpofe,  and  no  farther.  So,  he  may  make 
a  general  vifitor,  and  yet  appoint  an  inferior  particular^ 
power,  to  be  executed  by  another  perfon  who  will  then  be 
fpecia I  viCitor.  Thus  the  vifitation  of  the  corporation  at 
large  may  be  in  one  perfon,  and  that  of  one  of  the  mem- 
bers, as  of  the  head,  may  be  in  another  :  and  if  the  founder 
of  a  college  appoint  a  vifitor  of  the  head  fpecially,  the  ge- 
neral power  of  vifitation  remains  in  the  founder  and  his 
heirs.  The  manner  too  in  which  the  vifitatorial  power 
(hall  be  exercifed,  whether  general  or  Jpecialy  may  be  pre- 
fcribed  by  the  founder  (a). 

No  particular  form  of  words  is  neceflary  for  the  ap- 
pointment of  either  a  general  or  fpecial  vifitor.  "  Let  the 
bifhop  of  Ely,  for  the.  time  being,  be  vifitor,"  is  an  ap- 
pointment of  a  perpetual  and  general  vifitor.  But  a  per- 
fqn  may.  be  general  or  fpecial  vifitor  without  fuch  exprefs 
appointment,  and  the  intention  of  the  founder  that  he 
fhould  be  fb,  collected  from  the  ftatutes.  So,  from  the 
whole  purview,  of  the  ftatutes  confidered  together,  muft  be 
colle£l:ed  the  power  which  the  founder  meant  to  give  the 
vifitor  (^).  , 

The  fentence  of  a  vifitor,  on  fubjefts  within  his  jurif- 
diftion,  is  final  and  conclufive,  and  the  King's  courts  can- 
not, in  any  form  of  proceeding,  review  the  fentence.  Lord 
Chief  Juftice  Hale  is  faid  to  have  been  always  of  this 
opinion;  and  on  this  principle  was  decided  the  cafe  of  one 
Appleford,  who  applied  to  the  court  of  King's  Bench  for  a 
mandanms,  commanding  the  matter  and  fellows  of  New 
College,  in  Oxford,  to  reftore  him  to  a  fellowfhip  of  which 
they  had  deprived  him :    the  mandamus  ifliied  j    and  they 

s(a)yid,  t'itzgi  108,  307.    3  Atk.  663.     i  Vcf.  78.     a  Vef.  328. 
1  Biir.^  200.  ^b)  Vid.  the  authorities  laft  cited. 

returned> 


OF    CORPORATIONS.  f^^ 

returned,  that  by  the  laws  of  the  founder,  they  might  ex- 
pel any  one  who  had  committed  an  enormous  crime ;  th  it 
Appleford  had  committed  an  enormous  crime,  and  that, 
therefore,  they  expelled  him ;  that  he  had  appealed  to  the 
bifhop  of  Winchefter,  who  was  vifitor  of  the  college,  and 
who  confirmed  the  expullion;  then  they  concluded  to  the 
jurifdiftion  of  the  court :  this  was  held  a  good  return, 
though  it  did  not  mention  what  crime  Appleford  had  com- 
mitted, fo  that  it  might  appear  to  the  court,  whether  he 
was  lawfully  expelled  or  not ;  for  it  was  held,  that  the 
court  had  no  right  to  interpofe,  and  therefore  it  was  of  no 
life  to  mention  the  crime  («). 

But  this  point  was  not  finally  fettled  till  the  famous 
cafe  of  Phillips  and  Bury ;  which,  as  it  is  a  leading  cafe  on 
the  fubjeft  of  the  vifitatorial  power,  and  not  very  diftindly 
reported  in  any  one  book,  the  reader  will  excufe  me  for 
giving  at  fome  length. 

Exeter  college,  in  the  univerfity  of  Oxford,  was 
founded  by  William  Stapleton,  in 

the  year  to  confift  of  a  reftor  and 

fellows  or  fcholars;  by  the  name  of  the  re£lor  and  fcholars 
©f  Exeter  college,  within  the  univerfity  of  Oxford :  but 
this  houfe,  which  was  originally  a  hall,  was  made  a  college 
and  body  politic  and  corporate,  by  Queen  Elizabeth,  in 
the  eighth  year  of  her  reign :  the  founder  gave  a  "body  of 
jftatutes  to  the  college,  by  which  the  bifliop  of  Exeter,  for 
the  time  being,  was  appointed  general  vifitor;  by  one 
ftatirte,  the  mode  by  which  the  redor  fliould  beeleded  was 
pointed  out,  and  an  oath  prefcribed  to  him,  on  his  eleftlon, 
by  which,  among  other  things,  he  was  to  fwear,  that  he 

(a)  Daniel  Appleford' s  cafe,  i  Mod.  82.  Cartb.  92,  93,  cites  i  MocJ^ 
82.     1  Lev.  23,  65.    2  Lev.  14.   -  Raym,  56,  94,  joo.     Sid.  94,  152^ 

O  3  would 


198  TH  E    LAW 

would  keep  and  defend  the  liberties  and  privileges  of  the 
college  i  another  ftatate  pointed  out  for  what  faults  and 
crimes  he  fhould  be  deprived,  among  which  were  wafting 
or  alienation  of  the  revenues  or  goods  of  the  college,  adul- 
tery, and  fome  other  particular  a£ls,  and  likewife^ie  man- 
ner in  which  he  fhould  be  removed  for  thefe  faults,  viz. 
that  he  fhould  be  admonifhed  by  the  fub-re(5lor,  and  five 
fenior  fellows,  quietly  to  depart,  which,  if  he  refufed  to  do 
within  a  certain  time  limited,  the  fub-redtor,  with  the  con- 
fent  of  the  major  part  of  the  fcholars,  fhould  write  to  the  ' 
bifhop,  who  fhould  hear  the  accufation,  and  if  he  fo^nd  it 
true,  remove  the  reftor  from  his  place :  the  flatute  de  vtfi^ 
tatione  runs  in  this  manner,  ^^Liceat Domino  Epifcopo  £x-. 
onias,  quoties  per  Re^lorem,  et,  in  ejus  abfentia,  Subrec- 
torcm,  quatuor  alios  ex  feptem  maxime  fenioribus  fuerit 
requifitus,  necnon  abfque  requifitione  ulla  de  quinquen- 
nio  in  quinquennium  femel  ad  ditStum  collegium  per  fe  vel 
commiilarium  accedere. 

**Si  tamen  ad  ^^^r/z;<7//W;wautinhabilitatem  re£loris  aut 
expiiljionem  Scholaris  alicujus  per  Epifcoptim  Exoni^ntem  • 
vel  ejus  commifTarium  agatur,  tunc  oftendantur  ei  de- 
te<£la  {a)  quibus  fi  non  poterit  rationabiliter  refpondere,  et 
fefe  fuper  objeda  purgare,  amoveatur  fine  appellatione,  aut 
'ulterior!  remedio  dummodo  ad  ejus  expulfionem  concurrat 
conTenfus  reiSloris  et  trium  de  feptem  maxime  fenioribus 
fcholaribus  tunc  in  univerfltate  prefentibus,  fine  quorum 

confenfu,  irrita  fit  hujufmodi  expulfio  et  nulla  ipfo  fafto 

et  infuper  fi  contra  Redlorem,  ad  amotionem  ab  officio  per  J 

hujufmodi  Domini  Epifc^/^/ Commiflarium  etiam  confenti- 
entibus  quatuor  ex  feptem  maxime  fenioribus  fcholaribus  ■ 
procedatur,   non  negamus  ei  omnes  exceptiones  juflas, 

• 

(a)  Qu.  whether  it  ought  not  to  be  obje^a  or  defeSia. 

apud 


OF    CORPORATIONS.  I99 

apu4  ^undem  Dominum  Epifcoputn  Exonienfem,  dum- 
modo  ulterius  non  appellet.'^ 

With  rcfped  to  the  time  which  the  vifitation  ihould 
laft,  the  ftatutes  had  this  claufe :  "  Non  excedat  ultra  duos 
dies  proxitne  fequentes,  aut,  ex  cauAs  urgentiffimis  et 
rarifiiaiis,  ultra  ties  die*,  fed  triduo  tranfacSlo,  eo  ipfo,  vifi- 
tatio  ilia  pro  terminata  et  dliToluta  habeatur." 

In  the  college  there  were  fome  perpetual  fcholars,  and 
fome  probationary,  whofe  period  of  probation  was  a  year^ 
am  oath  was  prefcribed  to  the  fcholars  of  each  clafs ;  that 
of  a  probationer,  was^  that  he  ibould  not  reveal  the  fecrets 
of  the  college,  or  uiake  parties  in  it,  and  if  he  fhould  hap- 
ten to  be  expelled  the  college,  that  he  fhould  renounce  all 
appeals,  and  &ould  do  fo  in  writing,  if  he  fhould  be  re« 
quired  fo  to  do  at  his  expulfion.  The  oath  of  a  perpetual 
fcholar  was,  to  obferve  the  flatutes  of  the  college,  to  do' or 
fuiier  no  daoiage  to  the  college  j  to  obey  liis  fuperiors; 
and,  if  he  fhould  be  expelled,  to  renounce  aU  appeals,  &c« 

On  the  firfl  of  June,  in  the  fecond  year  of  King  Jaoies, 
Dr.  Bury  was  chofen  reAor  of  the  college. 

On  the  6th  of  Oaober,  Mn  the  firfl  year  of  King  Wil- 
liam  and  Queen  Mary,  one  James  Colmer,  a  fellow  of  the 
college,  was  convi(^ed  of  incontinency,  before  Dr.  Bury, 
the  re<^or,  the  fub-re£lor,  and  dean,  and  £ve  others,  of  the 
fenior  fellows  of  the  caUege,  with  the  af&nt  of  the  rec- 
tor, and  for  that  reafoit  expelled  the  college. 

CoLMER  appealed  to  the  bifhop  of  Exeter,  as  viiltor, 
who  received  the  appeal,  granted  an  inhibition  to  any  fiir* 
tjner  proceedings  againfl  Colmer,  and  made  an  order  re- 
quiring the  redror  and  fellows  to  give  an  account  of  their 
proceedfngs,y«^  pana  juris  et  coniemptus.  This  order  was 
ferved  upon  the  re£lor  and  fellows,  and  then  thereftor  lent 

V   O  4  a  fub- 


200  ,      THE     LAWs 

a  fubtniflive  letter  to  the  bifhop,  and  no  farther  proceed- 
ings were  had  for  fome  months.  ^ 

The  bifliop  commiilioned  Dr.  Mafiers  to  determine 
this  appeal,  for  which  purpofe  a  citation  was  fixed  on  the 
chapel  door  of  the  college,  requiring  the  redor,  &c.  tp  ap« 
pear  on  Saturday,  March  23d,  1688^9,  or  1689 — 90.  The 
redtor  appeared  accordingly,  and  tendered  a  proteflation ; 
but  the  commiiTary  proceeded  to  give  fentence  for  the 
reftoration  of  Mr.  Colmer. 

Some  time  after  this  fentence,  the  reAor  and  fellows 
proceeded  agaipft  Mr.  Colmer,  as  a  pretended  fellow,  for 
another  a£t  of  incontinency ;  he  again  appealed  to  the 
bi£hop,  who  received  the  appeal  a  fecond  time,  and  re- 
folving  on  a  vifitation  in  perfon,  fent  a  moniiiony  on  the  16th 
of  May,  1696,  under  his  epifcopal  feal,  diredled  to  the  faid 
Dr.  Bury,  then  reftor,  and  to  the  fub-reftor  of  the  col- 
lege, requiring  them  to  appear,  on  the  i6th  of  June,  next 
following,  before  the  bilhop  or  his  commiiTary,  in  the 
chapel  of  the  college :  on  the  faid  i6th  of  June,  the  bifliop 
went  to  the  college  in  order  to  vifit  it,  and  went  «to  the 
chapel  of  the  college,  but  found  the  chapel  doors  fliut 
againft  him.  The  reftor  and  fcholars,  in  the  co'urt  of  the 
college,  offered  to  deliver  to  the  vifitor,  a  proteftation  un- 
der the  college  feal,  in  which  they  fet  forth,  as  a  reafon  for 
not  obeying  the  citation,  the  bifliop's  having  vifitcd  in  the 
February  before,  by  Dr.  Matters ;  the  vifitor  refufed  to 
accept  the  proteftation,  and  one  Francis  Webber  being  . 
fworn,  declared  on  oath,  that  the  citation  was  read  in  the 
chapel  of  the  college  before  the  coming  of  the  bifliop. 
The  bifliop  caufed  the  names  of  the  re£ior  and  fcholars  to 
be  called  over,  but  they  did  not  appear  i  the  porter  being 
called,  and  not  appearing,  the  vifitor  departed  without  do- 
ing 


QF    CORPORATIONS.  20X 

ingany  thing  farther :  on  the  firft  of  July,  1690,  the  vifi- 
tor,  by  ^  certain  other  writing,  fealed  with  his  feal,  ci^ed 
the  re£bor  and  (cholars  by  name,  to  appear  before  him 
in  the  common  hall  of  the  college,  on  the  24th  of  July, 
then  next  following,  of  which  the  redor  and  fcholars 
had  notice,  and  protefted,  by  a  certain  writing  under 
their  common  feal,  againft  the  intended  vifitation.  .The 
proteftation,  as  before,  fet  forth  the  fiatute  de  vifitatione^ 
by  which  the  vifitor  was  to  vifit  de  quinquennia  in  quin-^ 
quenniumi  then  fliewed  that  he  vifited  by  his  commiflary. 
Dr.  Mafters,  in  March  \  that  five  years  were  not  fince 
elapfed,  and  that  they  were  fworn  to  preierve  the  fta* 
tutes  and  privileges  of  the  college ;  giving  thefe  as  their 
reafons,  why  they  could  not  fubmit  to  the  vifitation. 
The  vifitor,  ho^yever,  proceeded  in  his  vifitation,  oi| 
Thurfday  the  24th  of  July;  Dr.  Bury,  and  feveral  of  the 
fcholars,  being,  fummoned,  did  not  appear;  on  which 
the  vifitor  called  for  the  oath  of  the  apparitor  of  the  i6th 
of  June,  and  ordered  it  to  be  regiftered  as  an  a£l :  then 
he  adjourned  the  vifitation  till  Friday  the  25th,  and  on 
that  day's  meeting  did  feveral  vifitatorial  ads, ,  and,  in 
particular,  fufpended  George  Verman,vJohn  Kern,  Tho- 
mas Lethbridge,  Benjamin  Arches,  and  feveral  other 
fellows  for  their  contumacy  in  not  appearing ;  then  he 
adjourned  till  Saturday  the  26th  of  July,  when,  by  the 
confent  of  four  of  the  fenior  fellows  of  the  college,  then 
prefcnt  in  the  univerfity,  and  not  fufpended,  he  deprived 
the  re£lor;  but  four  of  the  affenting  fellows  were  not 
four  of  the  feven  feniors ;  luilefs  by  the  expulfion  of  Dr. 
Hern,  who  had  a  college  living,  which  was  thought  in- 
compatible with  his  fellowlhip,  and  the  fufpenfion  of 
four  others  their  feniors. 

After 


201  THE    LAW 

After  this  fentcncc  William  Painter  was  chofcn  rcdlor, 
"  concurrentibus  iis  qui  iii  jure  requiruntur,'* 

On  this  cafe  an  cjeftment  was  brought  by  one  Phillips 
for  ihe  re£lor's  houfe,  on  the  deinife  of  Painter,  againft 
Dr.  Bury,— The  defendant  pleaded  fpecially,  that  the  boufe 
in  queflion  was  the  freehold  of  the  redor  and  fcholars,  but 
faid  that  he  was  then  redor  of  the  college,  and  that  in  right  ' 
of  the  redor  and  fcholars  he  entered  and  ejected  the  plain- 
tiff; without  this,  that  the  leflbr  of  the  plaintiff,  at  the 
tiix^  when  the  leafe  in  the  declaration  mentioned  w<0 
made,  was  redlor  of  the  college. 

The  plaintifF  replied,  that  the  mefTuage  belonged  to 
the  re£lor~and  fcholars,  but  that  the  leflbr  was  reAor,  and 
not  the  defendant,  at  the  time  of  the  leafe :  on  this  they 
were  at  ifiiie,  on  which  a  fpecial  verdi^i  was  found,  ftating  . 
thelsuSb  before  fet  forth:  and  the  general  queilion  was, 
whether,  under  all  the  circumftances.  Painter  was,  at  the 
time  of  the  demife,  re£lor  of  Exeter  college,  or  not,  which 
depended  on  the  validity  of  the  dei>rivation  of  Dr..  Bury. 

By  the  opinion  of  three  of  the  judges.  Sir  Samuel  Eyre^ 
Sir  Giles  Eyre,  and  Sir  William  Gregory,  againft  the 
opinion  of  Lord  C,  J.  Holt,  the  deprivation  was  held  to 
be  void,  and  judgment  given  in  favour  of  the  defendant> 
which  however  was  afterwards  reverfed  in  a  writ  c^  error 
in  the  Hpufe  of  Lords. 

lNt}ie  arguing  d*  this  cafe  two  principal  queftions  were 
9£itated :  firft,  whether  the  validity  of  the  fentence  of  de-»  . 
l^ivation  was  examinable  In  a  collateral  adiion  in  the  . 
<;ourts  of  common  law  f  And,  fecondly,  if  it  was,  whe- 
ther,, in  the  prefent  inQiance,  the  biihop  had  power  to  give 
fttch  a  fentence  ? 

In  the  courfe  of  the  argument,  every  one  of  the  three 
ju4&es  ufed  exprefiionS)  from  which  it  might  have  been  con- 
cluded, 


OF    CORPORATIONS.  2O3 

eluded,  that  they  admitted  the  fentence  of  the  vilitor  could 
not  be  examined  by  the  courts  of  comn^on  law,  in  cafes 
which  clearly  fell  within  his  jurifdiftion. 

Sir  Samuel  Eyre  is  r^ported^(^?)  to  have  faid,  "  if,  by 
what  is  foupd,  it  appear^  to  us  that  the  vifitor  acted  extra-* 
judicially^  arid  has  done  wrong  in  depriving  the  redor ; 
certainly  we  are  not  to  intend  that  he  has  done  right.** 
From  this  it  might  be  fairly  implied,  that  if  he  had  thought 
the  cafe  came  within  t;he  vifitor's  jurifdidtion,  he  would 
have  thought  the  fentence  could  not  be  examined  in  th^ 
prefent  a£kton. 

Sir  Qiles  Eyre  exprefsly  fai^s  (^),  ^*  though,  where  the 
vifitor  has  a  power,  the  fentence  (hall  not  be  examined 
here,  yet  when  he  has  not  any  authority,  it  fliall  be  ex- 
amined.^' 

Sir  William  Gregory  admits  (r),  "  th^t  in  the  cafe  of 
a  viiitor,  the  law  will  not  queftion  his  a<£b  done  according 
to  his  power,  which  is  the  reafon  why  this  court  (B.  R.) 
denies  deprived  or  expelled  fellows  a  m^damus  to  reftore 
them  to  their  places." 

Notwithstanding  thefe  feeming  admiffions,  how- 
ever, the  whole  fcope  of  their  arguments  is  to  eftabliih  the 
propofidon,  that  in  a  collateral  a<3ion,  the  lentence .  of  the 
vifitor  ipay  be  examined  and  fet  afide,  even  in  cafes  which 
fall  clearly  within  his  jurifdidtion :  and,  in  the  prefent  cafe, 
they  are  not  fatisfied  with  deciding  that  the  vifitor  had 
afTumed  a  jurifdidion  which  did  not  belong  to  him,  but  as 
if,  for  the  fal^  of  arguoient,  they  bad  admitted  the  prefent 
tQ  be  a  cafe  clearly  within  his  conufance,  they  proceed  to 
ih^ew  th^  his  fqntenQ^  was  uiyuft 


(a)  Skinner,  455,        (5)  Skinner^  46S.         (c)  Skinner^  471. 

The 


204  THE     LAW 

The  Chief  Juftice  did  hot  go  the  length  of  contending, 
diat  the  proceedings  of  a  vifitor  fhould  in  no  cafe  be  ex- 
amined 5  but  that  where  it  appeared  from  the  fafts  ftated 
to  the  court,  that  the  cafe  in  which  he  had  pronounced 
fentence  was  within  his  jurifdiftion,  ih^tfentence  ought  not 
to  be  examined,  either  as  to  the  truth  of  the  fafts  on  which 
it  was  founded,  or  as  to  its  equity  as  founded  _on  thofefa<Sts 
fuppofmg  them  to  be  true. 

Through  the  whole  of  his  argument  he  took  it  for 
granted,  that  the  court  might  examine  into  the  proceedings 
of  the  vifitor,  to  fee  whether  what  he  had  done  was  within 
his  jurifdi6lion;  and  if  he  had  thought  that  intheprefent 
cafe,  the  vifitor  had  »0  jurifdi6lion,  he  would  have  con- 
curred with  the  reft  of  the  court  in  pronouncing  the  fea* 
tence  invalid. 

He  examined,  with  the  fame  minutenefs  as  the  other 
judges,  all  the  ftatutes  and  all  the  proceedings  of  the  vifitor  ; 
but  drew  a  different  conclufion:  his  idea  of  the  extent  of  a 
vifitor's  power  by  the  common  law,  differed  eflentially 
from  theirs :  they  aflerted  that  the  whole  power  of  the 
vifitor  is  derived  from  the  founder,  and  may  be  controuled 
and  limited  by  his  ftatutes,  and  that,  in  the  prefent  cafe, 
from  die  true  conftruAion  of  the  ftatutes,  his  power  was 
limited,  and  he  had/deprived  Dr.  Bury  in  dired  contra-* 
vention  of  them. 

The  Chief  Juftice,  admitting  that  the  vifitor's  power 
may  be  limited  and  controuled  by  the  ftatutes,  contended 
that  he  had  a  general  inherent  power  by  the  common  law, 
which,  by  the  true  conftruftion  of  the  ftatutes  in  the  pre- 
fent cafe,  was  not  in  fadl  reftrained  by  them;  tha^  the  cafe 
w'as  clearly  within  the  jurifdidlion  of  the  vifitor,  and  his 
fentence  ought  not  therefore  tote  examined, 

With 


OF    CORPORATIONS.  205 

With  refpcd  to  the  power  of  the  vifitor,  the  three 
judges  contended,  that  it  was  a  lii^ited  power  by  private 
ftatutes  {a)y  and  not  fuch  a  general  power  as  that  of  the 
known  eccleflaftical  courts ;  that  he  had  no  greater  autho- 
rity or  power  (b)  than  the  founder  gave  hiiil :  he  was  the 
founder's  creature,  and  received  his  being,  power,  and 
authority  from  him,  and  if  the  founder  g^ve  him  authority 
in  fome  things  and  fome  cafes  and  not  in  others,  and  qua- 
lified and  limited  that  power  which  he  gave  him,  tbe  viiitor 
could  not  exceed  that  power  and  authority  which  was 
given  him :  and  that  the  founder  might  (c)  thus  reflrain 
the  powers  of  the  vifitor  was  plains  for  he  who  gives  a 
power  and  jurifdi£tion  newly  created,  might  modify  and 
limit  that  power  and  jurifdi£lion  as  be  pleafed ;  and  it  mufl 
he  expounded  as  nearly  to  this  intention  as  poflible,  and 
executed  according  to  what  was  plainly  exprefied,  other- 
wife  whatever  was  done  would  be  void,  and  the  power  not 
purfued  (^).— In  fliort,  they  reduced  the  vifitatorial  power 
to  a  mere  authority,  and  cited  ^  number  of  cafes  (e)  to 
ihew  with  what  ftridtnefs  the  law  requires  a  bare  authority 
to  be  executed. 

With  refpeft  to  the  power  of  the  court  to  examine  and 
cofreft  the  fentence  of  the  vifitor,  they  endeavoured  to 
diftinguiih  between  the  cafe  of  a  mandamus  and  a  collateral 
action  :  they  admitted  that  the  cafes  which  had  been  de- 
cided on  mandamus  were  good  law  {f) :  but  they  faid, 
that  in  thefe,  the  whole  matter  was  fhewn  in  the  return, 
which  was  not  controvertible,  but  that  it  being  fet  forth 
that  there  was  a  vifitor  who  had  authority  to  determine, 

{a)  Skin.  471.  {b)  Ibid,  454.  {c)  Ibid,  463,  464. 

{d)  Vid.  Ld.  Raym.  7.  {e)  Skinner,  464. 

-    (/)  Id.  454,  468,  471.  -  .  * 

that 


ao6  THE    LAW 

that  was  finals  ftiid  the  court  bound  by  it,  but  tfi^t  here 
die  matter  being  foandby  the  jury,  and  left  to  the  judg- 
ment of  die  eoutt^  they  ought  to  adjudge  his  fentence  to 
be  vcMd,  if  it  was  not  according  to  the  ftatutes  :  they  dif- 
'  tinguiflled  diis  cafe  C06  from  the  Ordinary  cafes  on  man- 
damus, obferving  that  here  the  firft  fentence  was  by  the 
vi&tor  himfelf,  from  whom  there  was  no  appeal  to  a  fupe- 
rior  tribunal* 

They  infilled  on  the  general  power  which  the  court  of 
King's  Befich  poiTefled  (d)  of  not  only  correfling  errors 
in /cfiiVM/ proceedings,  but  alfoof  redifying  extrajudicial 
proceedings  which  tended  to  the  oppreffion  of  the  flibjeQ  ; 
they  fiiid,  diat  where  any  jurifdldion  was  reftrained  as  to 
time  and  place,  or  perfons,  and  other  particular  circum- 
ftances,  and  it  exceeded  and  tranfgrefled  its  limits,  this 
court  had  power  to  interpofe  and  keep  it  within  its  limits  r^ 
diat  it  was  a  general  principle,  diat  where  a  man  had  4 
wrong  done  to  him,  the  law  had  provided  feme  remedy  Ibr 
him :  that  the  policy  of  Ae  law  had  not  trufted  any  of  the 
courts  of  juflice  originally  with  the  final  determination  of 
matters  of  law,  but  had  appointed  writs  of  error  and  ap- 
peals to  correft  the  errors  of  inferior  tribunals :  that  no 
man  could  ereft  a  jutii3i£liofi  of  which  the  decifions  fhould 
not  be  fiibjeil  to  examination,  any  more  than  he  could 
appoint  by  his  will,  that  if  any  difference  fhouid  ^ife  on 
the  conftruflion  of  it,  that  fhould  be  determined  by  J.  S. 
and  that  his  determinsltidn  fhould  be  final :  ind  that  the 
law  fhould  put  fuch  a  poWer  in  the  vifitor  of  a  college, 
that  he  fhould  do  what  be  pleafed ;  that  whatever  he  did 
fhould  be  like  the  laws  of  the  Medes  and  Perfians,  una/ter" 
able  and  unqueftionahle ',  and  that  when  fuch  a  cafe  came 

(^)  Skin.  454,  47i.  ,    ^ 

before 


OP     CORPORATIONS.  2O7 

before  the  court,  they  ihould  be  precluded  from  giving  a 
remedy,  feemed  ftrange  and  improbable. 

They  diftinguifhed  this  cafe  from  thofe  which  belong 
properly  to  the  jurifdiftion  of  the  ecclefiaftical  courts;  in 
the  latter  they  admitted  the  fentence  was  final,  and  the 
proceedings  not  examinable  direftly,  but  by  appeal  or  com- 
miflion  of  review,  for  that  the  courts  of  common  law  gave 
credit  to  the  fentence  of  the  ecclefiaftical  courts  in  caufes 
of  which  they  had  conufance:  but  this  was  the  cafe  of  a. 
lay  corporation  not /ubje£f  to  the  jurifdi<^ion  of  the  eccle^ 
fiaftical  courts ;  that  no  appeal  lay  from  the  fentence  of  the 
vifitor,  and  that  of  ncceffi|:y,  it  was  examinable  4n  a  colla- 
teral a£kion,  for  otherwife  the  party  injured  would  be  with- 
out remedy :  and  Sir  S;  Eyre  cited  the  cafe  of  Dr.  Cove- 
ney,  in  Dyer  (tf),  who  fays,  "  that  this  being  a  temporal 
matter,  the  party  wronged  Ihall  have  an  aHize,  or  fome 
fuch  fuit,  at  common  law:"  from  whence,  hefaid,  it  was 
flroiigly  implied,  that  there  could  be  no  cafe  where  a  man 
fhould  have  a  wrong  done  to  him  in  a  temporal  matter, 
without  having  a  remedy  provided  by  the  law :  but  Sir 
Giles  Eyre  faid  that  he  could  not  have  an  affile,  becaufe  he 
was  but  one  part  of  the  body,  and  not  capable  to  maintain 
an  affize  in  his  own  name;  for  which  he  cited  8  AfT.  29. 
13  Rep.  70,  and   11   Rep.  99  :   from  whence  he  inferred 
the  more  ftropgly,  that  the  fentence  of  the  vifitor  mufl  of 
neceffity  be  examined  in  a  collateral  action. — ^They  further 
obfcrved,  that  even  in  cafes  which  were  purely  and  pro- 
perly of  ecclefiaftical  jurifdi6tIon,    though  the  te'mpofal 
courts  could  not  direftly  interfere,  yet  if  a  title  to  land 
came  to  be  tried,  in  which  thofe  matters  accidentally  oc* 
curred,  they  were  to  be  judged  of  and  tried  in  the.tempQ- 
ral  court. 

{a)  tiyer,  209. 

This 


208  THE    LAW 

This  latter  obfcrvation,  however,  does  not  fecm  appIU 
cable  to  the  cafe  under  difcuffion.— The  queftions  of  eccle- 
fiafttcal  juriidi^on  which  may  be  determined  by  the  tem- 
poral court,  are  fuch  only  as  accidentally  occur  in  the 
progrefs  of  the  caufe ;  but  the  validity  of  ihe  vifitor's  fen- 
tence  here  was  not  an  incidental  point,  but  the  fole  quef- 
tion,  to  determine  which  the  ejeftment  was  brought. 

In  examining  whether  the  vifitor  had  a£ted  within  his 
authority,  they  made  it  a  principal  point,  that  by  the  flatute 
de  vtfitatione^  he  was  not  enabled  to  make  a  viiitation  on 
the  24th  of  July. 

They  all  infifted  that,  by  the  words  of  the  ftatute,  he 
had  power  to  make  a  vifitation  only  in  two  cafes  \  the  one 
when  he  (hould  be  requefted  by  the  reSor,  fub-reddr,  and 
fcholars ;  and  the  other  without  a  requeft,  ex  officio,  from 
five  years  to  five  years  :  that  if  he  had  at  any  time  viflted 
ex  officio,  he  could  not  make  a  fecond  vifitation  without 
requefl,  till  the  expiration  of  five  years ;  it  was  not  pre- 
tended that  there  was  here  any  vifitation  by  requefl  5  and 
to  fhew  that  the  vifitation  of  the  24th  ot  July  was  prema- 
ture. Sir  Samuel  Eyre  {a)  was  of  opinion  that  the  com- 
miffion  to  Dr.  Mailers  to  hear  the  appeal  of  Mr.  Colmer, 
and  his  acting  under  that  commiifion,  was  a  quinquennial 
vifitation :  firft,  becaufe  it  was  not  a  vifitation  by  requefl*) 
but  fo  much  the  contrary,  that  the  reftor  and  fcMblars  pro- 
tefled  againfl  it;  fecondly,  becaufe  it  mufl  be  underflood, 
that  whatever  the  founder  had  diredjed  to  beobferved  under 
the  fan£tion  of  an  oath,  he  intended  fhould  be  confiJered 
as  part  of  his  flartutes  ;  "by  the  oath  of  the  redlor,  he  was 
to  be  faithful  to  the  college,  and  to  preferve  their  pofTef- 
fions,  their  rights,  and  their  liberties,  to  the  utmofl  of  his 
power  :  by  the  oath  of  the  fcholar,  in  annum  probationis, 

{a)  Skin.  45S. 

he 


'       OF    CORPOKAiriONS.  2G9 

•te  wa$  Wiat  to  reveal  the  fecrets  of  die  college,  or  to  make 
parties  in  it;. and  if  he  fliould  happen  to  be  expelled  the 
i^olleg'e,  to  renounce  all  appeals :  by  the  oath  of  a  perpe- 
tual fcholar,  befide  other  things,  he  alfo  was  to  renounce 
4iU  appeals  :  ifo  that  the  ftatutes  allowed  no  appeals  to  the 
vifitor  for  a  Scholar  deprived.  .  He  did  jiot  doubt,  indeed, 
but  that  the  vifitor  in  his  vifitation,  whether  it  was  by  re-> 
queft  or  not,  might  have  examined  this  matter  of  Colmer  ; 
/or  his  authority  reached  to  interrogate  about  th^  ftate  of 
^Ae  college  and  all  its  members;  but  ftili  this  muftbe  in  his 
vifitation^  and  there  was  not  a  word  in  all  the. ftatutes  that 
gaveihim  power  to. hear  appeals,  or  to  examine  milcar- 
riages,  otherwlfe  than  in  a  vifitation;  and  for  dieferedbns 
-he  concluded  Dr«  Mafters's  commiffion  muft  be  a  vifita- 
tiM,  and  if  fo,  the  vifitation  of  the  24.th  of  July  was  pre* 
mature,  and  every  a&  done  in  it  abfolutely  void. 

The  coming  of  the  'bifliop  on  the  i6th  of  Junc'in  die 
.fame  year,  he  alfo  confidered  as  a> vifitation;  for  he  had 
done  a  vifitatortal  aA  in  examining  M^ebber,  the  apparitor, 
about  the  citation;  and  he  thought  there  was  no  doubt, 
'but  that  if  the  vifitor  came  to  interrogate,  though  he  made 
no  decree,  it  was  a  vifitation^  and  he  had  himfelf  after- 
wards entered  it  as  a  vifitatorial  z& :  this  vifitation,  it  was 
confefied,  was  not  by  requeft ;  it  muft  therefore  be  cot|-> 
fideredas  a  quinquennial  vifitation;  and  if  fo,  it  was  be- 
^fore- the- time,  and  therefore  void. 

The  vifitation  in  July  was  not  found  to  have  been  by 
requeft ;  it  was  therefore  a  voluntary  vifitation, .  and  made 
a  third  quinquehnial  vifitation  within  fix  months :  and  by 
the  ftatutes  of  the  college,  if  that  of  the  13th  of  March, 
er  the  other  of  the  i6th  of  June  was  a  vifitation,  this  in 
July  muft  be  extrajudicial^  and  confcquentjy  every  thing 
done  then  muft  be  void. 
VoL.IL  P  Both 


2IO  THE    LAW 

Both  Sir  Giles  Eyre  and  Sir  William  Gregory  ad- 
mitted that  the  coming  of  Dr.  Mailers  on  the  commiffion 
in  March  could  not  be  coi^fidered  as  a  vifitation ;  becaufe, 
though  the  fcholar  by  his  oath  was  to  make  no  appeal, 
yet  the  dodlor's  commiilion  was  only  to  hear  an  appeal  in 
a  particular  cafe,  and  he  could  meddle  with  nothing 
elfe. 

Gregory  thought,  that,  under  all  the  circumftances 
as  found,  the  coming  6f  the  bifhop-ont  he  i6th  of  June  was  * 
a  vifitation :  he  had  iiTued  a  citation  or  monition,  requiring 
the  TcStoT  and  fcholacs  to  appear  before  him  and  fubmit  to 
his  vifitation ;  when  he  came  he  had  made  public  procla- 
mation for  their  appearance,  called  over  their  names,  and 
adminiftered  an  oath  to  the  perfon  that  ferved  the  citation, 
of  its  being  duly  ferved.  Thefe  were  a6b  which  he  could 
not  do  as  a  private  perfon,  but  only  as  a  vifitor  j  and  he 
might  have  adjourned  the  vifitation  from  the .  chapel  into 
the  hall,  and  there  have  perfefted  the  vifitation. 

The  vifitor  himfelf  had  (hewn  that  he  confidered  thefe 
afts  as  amounting  to  a  vifitation  j  for,  otherwife,  why  had 
he  in  July  called  for  the  proceedings  of  that  day,  and  had 
them  regiftered  as  an  aft  before  him  ?  Were  extrajudicial 
proceedings  to  be  called  acfts'  of  court  ?  If  then  the  a£b 
done  the  i6th  of  June  were  done  in  the  charafter  of  vifitpr, 
either  thefe  conftituted  a  vifitation  of  themfelves,  or  that 
day  was  the  firft  day  of  a  vifitation,  which  was  continued' 

in  July. 

Sir  Giles  Eyre  was  fo  far  from  thinking  that  what  was 
done  on  the  i6th  of  June  amounted  of  itfelf  to  a  vifitation, 
that  he  thought,  that  if  nothing  had  been  connefted  with 
it  afterwards,  it  could  not  have  been  confidered  even  as 
the  beginning  of  a  vifitation.  But  he  confidered  the^vifitor's 
calliHg^  for  the  oath  of  the  apparitor  and  caufing  it  to  be 

regiftered 


OF    CORPORATIONS*  211 

rpgiftercd  as.  an  z&  on  the  24th  of  July,  as  a  continuation 
of  what  was  done  on  the  i6th  of  June,  fo  that  the  viflta- 
tion  began  the  i6th  of  Juiie,  and  was  continued  through 
the  24th,  25th,  and  26th  of  July,  on  which  laft  day  was 
the  deprivation  of  Dr«  Bury. 

In  this  view  of  the  cafe,  he  agreed  with  Sir  William 
Gregory  in  his  reafoning  on  the  latter  part  of  the  alterna- 
tive put  by  him ;  and  contended  that  the  deprivation  of 
Dr.  Bury  was  void,  the  viiitation,  by  the  conftrudtion  of 
the  ftatute  de  viiitatione,  being  determined  before  the  day 
on  which  the  deprivation  took  place :  for  that  ftatute  had 
impowered  the  vifitor  to  hold  his  vifitation  but  for  two  days, 
unlefs  ex  caujis  urgentijpmis  et  rarijjimis  ;  and  then  it  was 
not  by  any  means  to  be  prolonged  beyond  three  days,  and 
every  thing  done  after  the  three  days  was  void. 

But  admitting  that  the  vifitation  in  July  was  a  regular 
quinquennial  vifitation,  the  three  judges  concurred  in 
opinion,  that  in  the  manner  of  depriving  the  redlor,  the 
vifitor  had  gone  beyond  his  power ;  for  that  it  was  never 
the  meaning  of  the  founder,  as  appeared  by  the  ftatute, 
that  he  alone  fliould  have  the  power  of  depriving  the  rec- 
tor,- but  that  he  muft  have  the  cpnfent  of  four  of  the  fenior 
fellows  of  the  college. 

It  had  indeed  been  argued,  that  this  confent  was  only 
neceflary  to  the  expulfion  of  the  fellows,  becaufe  the 
claufe  in  the  ftatute  ^^  iummoio  ad  ejus  expuljionem  con- 
currat  confenfus  re<Sioris  et  trium  de  feptem  maxime  feni- 
oribus,  &c*  fine  quorum  confenfu,  irrita  fit  hujufmodi 
expulfio,  &c."  could  not  apply  to  the  expulfion  of  the 
re6lor,  as  it  could  never  be  prefumed  that  he  would  confent 
to  his  own.  deprivation  :  but  in  anfwer  to  this  they  faid, 
that  taking  the  whole  ftatute  together,  though  ambiguoufly 
penned,  it  muft  be  underftood,  that  if  the  vifitor  or  his 

P  2  commiflary 


ai2  THE     LAW 

cotnmiilary  proceeded  to  the  removal  of  the  refiory  lie 
ought  to  have  the  confent  of  four  of  the  fenior  feQows  of 
the  college;  the  words  privatio^  expuljio^  amotidj  though 
di^ering  in  found,  yet  fignified  the  fame  things  being  ufed 
in  die  ftatutes  as  fynonymdus;  and  the  fair  conftru£Uon  of 
the  whole  ftatute  was,  that  if  the  reSfor  were  to  be  de- 
prived for  any  of  the  crimes  enumerated  in  the  ftatute, 
there  muft  be  the  confent  oifour  of  the  fenior  fellows ;  if 
zfcbolar  were  to  be  expelled,  there  muft  be  the  confent  of 
the  redor  and  three  of  the  feniors ;  by  Svhich  expofition, 
and  by  no  other,  the  ftatute  was  confident  With  itfelf* 

Besides,  they  (aid,  from  the  whole  tenour  of  the  ftatute, 
it  appeared,  the  founder  inlt^nded  to  the  rector  a  greatcfr 
advantage  againft  amotion  or  deprivation  than  to  theTdio- 
lais ;  it  gave  him  an  appeal  from  the  commlilary  to  thb 
l)iihop,  if  he  was  deprived  by  dife  former,  even  with  the 
confent  of  the  four  feniors;  fhould  he  then  be  put  in  \ 
worte  condition  than  any  of  the  fcholars  were  by  the 
Toimiler's  ftafutes,  by  being  deprived  without  the  confent 
of  any  one,  when  any  of  them  could  not  by  the  expre& 
letter  of  the  ftafiite  be  expelled  without  the  confent  of  thfe 
re£l6r  and  three  fenior  fellows  ?  The  vifitor  himfelf,  to 
whom  the  founder  had  given  the  power  of  explaining  the 
ftafutes,  had  fliewn  that  he  conceived  this  to  be  the  iilean- 
*ing  of  the  ftatute;  for  he  had,  iti  the  very  feritence  of  de- 
privation, exprefsly  mentioned  it  toBe  with  the  confent  of 
[fuch  and  fuch  perforis,  being  foLr  of  the  feven  fenior  fel- 
lows :  but  this  demonftrated  the  illegality  of  Dr.  Bufy's 
deprivation;  for  the  jury  had  exprefsly  found,  that  thefe 
were  not  the  four  "fenior  fellows,  unlefs  they  became  (b. 
*by  the  fufpenfibn  of  the  others :  it  could  not  be  pretended 
that  a  fellow  fufpehded'ceafed  to  be  a  fellow,  becaufe  that 
difability  being  removed,  he  wanted  no  new  election  or* 

admiffion, 


OF     CORfOR'ATIONft.  213 

a4(niffion,  but  ftill  held  the  fame  place  he  had  before,  and 
therefore  fuch  a  fufpenflon  could  no;  amount  to  an  amotion, 
which  alone  could  m^l^e  him  ceafe  to  be  a  fellow:  for 
want  of  the  concurrence  therefore  of  the  four  fenior  fellows* 
the  deprivation  y^as  void. 

It  i^as  void  alfo  for  another  reafon ;  the  ftatnte  had  pro- 
vided th^t  his  crimen  ihoyld  be  notified  to  him  before  fen- 
^ence  was  pronounced  on  him,  and  that  he  fhould  be  de- 
prived only  for  the  crimes  enumerated.    He  had  had  no 
notification  of  the  crimes  imputed  to  him,  and  he  was  de- 
prived, not  for  any  crime  mentioned  in  the  ftatutes,  but 
for  contumacy  :  and  what  was  the  contumacy  ?  Not  cpni- 
plying  with  the  vifitation  in  July^    The  redlor  and  the 
fellows  had  offered  their  reafons  to  the  bifhop  for  not  fub- 
mitting  to  it  as  a  vifitation ;  they  had  alleged,  that  by  their 
paths  they  were  bound  to  obferve  the  ilatutes,  which  con- 
fined  the  vifitation  to  once  in  five  ye^rsj  that  five  years 
^d  not  yet  elap|!Bd  fince  what  they  conceived  to  be  a 
former  yifitation^  and  they  protefted  againft  the  vifitationi 
left  any  thing  Ihould  be  done  to  the  prejudice  of  the  rights 
g{  the  college  5  inftead  of  being  guilty  of  any  crime,  the 
I'eftor  appeared  to  have  a6):ed  confcientioufly  as  an  honefl:  * 
pan;  he  had  conceived  himfelf  to  be  bound  by  his  oath  to 
jrefift  the  vifitation  j  yet  this  was  the  contumacy  for  which 
he  was  deprivejd :  an  oath  was  a  facred  thing,  which  a  maq 
pught  to  be  cautious  not  to  violate,  and  it  was  arbitrary 
and  oppreffiye  to  punifh  him  for  his  fcruples^ 

For  thefe  reafons,  the  three  judges  concurred  ix>  think- 
ing that  the  deprivation  pf  Dr.  Bury  was  void,  and  confc- 
qiiently  in  giving  judgment  i^t>  his  favour. 

The  Chief  Juftice  made  two  general  quefiions  :^ 

FiR§T,  Whether,  by  the  conftitution  of  the  cpllege, 
.the  bilhop  pf  Exeter  had  power  to  give  a  fentence  ? 

P  3         ^  Secondly, 


114  THE    LAW 

Secondly,  Suppofing  he  had  fuch  a  power,  whether 
the  jtd/f ice  of  the  fentence  was  examinable  in  this  court  in 
this  a£lion  ? 

He  agreed,  that,  by  the  ftatute  de  viHtatione,  the  bilhop 
could  make  his  vifitation  but  once  in  five  years,  unlefs 
he'^ere  called  by  the  requeft  of  the  college,  and  that,  if 
he  came,  without  requeft,  within  the  five  years,  his  vifi* 
tation  would  be  void,  and  if  he  gave  then  any  fentence^  it 
would  be  a  mere  nullity ;  but  he  held,  that  the  vifitation 
on  the  24th  of  July  was  a  good  vifitation,  and  confequently 
the  fentence  given  in  it,  good. 

He  could  fee  no  colour  for  confidering  thecoming  of 
Dr.  Mafters,  in  March,  to  examine  Colmer's  appeal,  as  a 
vifitation :  it  was  a  commiiSon  on  a  particular  complaint, 
made  by  a  fingle  expelled  fellow,  for  a  particular  wrong 
fuppofed  to  be  done  to  him  :  but  though  a  vifitor  were  re- 
ftrained,  by  the  conftitutions  of  the  college,  from  vifiting 
ex  officio^  but  once  in  five  years,  yet  as  vifitor,  he  had  a^ 
Conftant  {landing  authority,  at  all  times  to  hear  the  com- 
plaints and  redrefs  the  grievances  of  the  particular  mem- 
bers f  it  was  the  proper  office  of  a  vifitor,  to  relieve  and 
determine  all  differences  between  the  members,  as  appear- 
ed, he  faid,  from  Littleton,  fee.  136;  vifiting  was  one  a£i  in 
which  he  was  limited  as  to  time  \  but  hearing  appe^s,  and 
redreffing  grievances,  were  the  appropriate  bufinefs  of  this 
office  ;  this  was  the  cafe  with  all  the  bifbops  in  England ; 
they  could  vtfit  by  the  law,  but  once  in  three  years  s  but 
their  courts  were  always  open  to  hear  complaints  and  de^ 
termine  appeals :  fo  that,  though  the  bifhop,  in  the  pre- 
fent  cafe,  could  vifit  but  once  in  five  years,  unlefs  upon 
requeft;  yet  he  had  a  power  and  authority  to  hear  any 
difference  between  the  members,  and  redrefs  any  particu* 
)fir  iiijury  at  any  time. 

With 


OP    CORPORATIONS.  21 5 

With  refpcft  to  what  was  done  the  26th  of  June,  there 
could  be  no  queftion  but  he  intended  to  vifit  then ;  he  went 
for  the  cxprefs  purpofe  of  holding  a  yifitation,  but  they 
would  not  permit  him  to  enter  the  chapel,  where  he  had 
appointed  it  to  be  held :  it  was,  therefore,  the  ftrarigeft 
conftruflion  of  this  adl,  to  confider  it  as  a  vifitatiop ;  he 
did  nothing  but  call  over  the  names,  which  it  was  proper - 
he  fhould,  to  fee  who  it  was  that  hindered  him  from 
vifiting. 

But  it  was  faid,  that  though  he  only  adminiftcred  an 
oath  at  that  time,  he  afterwards  made  an  a<fl  of  it,  by  re- 
giftering  it  in  July,  by  which  he  tacked  the  vifitation  in 
June  to  that  in  July,  and  then  the  vifitation  continued 
much  longer  than  the  ftatutes  of  the  college  permitted : 
he  faid,  he  made  quite  a  different  conflrudion  of  this : 
when  the  vifitor,  being  hindered  in  June,  made  an  aft  of 
this  at  his  vifitation  in  July,  that  was  only  with  a  view  of 
calling  them  to  an  account  for  their  contumacy  ;  it  was 
ho  more  than  taking  an  affidavit  of  the  fervice  of  the  cita- 
tion: but  he  had  appointed  another  vifitation  to  be  heKl 
in  the  hall ;  did  that  alter  the  cafe  ?  by  no  means  :  it  was 
before  no  vijitationy  through  their  obflru£tion,  and  that  was 
one  thing  for  which  he  wifhed  to  call  them  to  account ;  it 
was  the  flrangeft  conflruftion,  to  fay,  that  when  the  vifitor 
defigned  his  vifitation  in  the  chapel,  but  was  prevented  by 
their  means,  that  impediment  fhould  amount  to  a  vifita- 
tion, and  it  would  be  extraordinary,  if  by  means  of  their 
former  contumacy,  they  fhould  efcape  from  a  true  vifi-  v 
tat  ion. 

The  next  queftion,  he  faid,  was,  whether  by  the  true 
conflrudtion  of  the  flatute  de  privatione^  the  confent  of 
the  four  fenior  fellows  was  necefTary  to  the  deprivation  of 
tile  redor  J    if  that  was  necefTary,  he  admitted,  that  the 

p  4  fentencc  , 


2l6  THE    LAW 

fentence  was  a  nullity,  for  he  agreed,  that  fiifpenfion  did 
not  vacate  the  office  of  a  fellow,  and  that,  therefore,  the 
confent  had  not  been  given  by  thofe  who  were  a£hially  the 
four  fenior  fellows  of  the  college  at  the  time  of  the  fufpen? 
iion :  but  he  thought,  that,  by  the  true  conftrudion  of  die 
ftatute,  their  confent  was  not  neceflary .«— -  Firil,  becaufe 
by  the  ftatutes,  the  bifhop  of  Exeter  was  made  the  ordi- 
nary .vifitor  of  the  college,  and  he  took  it  to  be  clear,  that 
where  any  one  wzis  vifitor  of  a  cpUege,  he  had  full  and 
ample  power  to  deprive  and  amove  any  member,  in  the 
quality  of  vifitor.— Secondly,  he  thought  an  expre^ 
power  was  given  to  the  biihop  to  proceed  to  the  depriva- 
tion of  the  re£tor,  or  the  expulfion  of  a  fcholar ;  and  this 
in  his  vifitation.— — The  ftatute,  he  faid,  ufed  the  word 
deprivatio  as  to  the  redor,  and  expuIjM  as  to  the  fcholar  \ 
and  though  he  agreed  that  the  words,  as  to  real  fenfe,  were 
i^nonymous,  yet,  in  this  ftatute,  be  contended,  they  were 
differently  applied ;  the  claufe  .^  if  the  bifhop  proceed^ 
&c."  related  only  to  the  fcholar,  becaufe  expuljioy  the  word 
there  ufed,  applied  only  to  the  removal  of  a  (cholar  all 
along ;  it  was  impoffible  it  fhould  relate  to  the  redlor,  for 
then  he  muft  confent  to  his  own  deprivation,  his  confent 
being  there  particularly  required  and  mentioned;  and  it 
was  abfurd  to  fuppofe  he  ihould  fo  confent :   in  this  place,  \ 

the  confent  of  three  of  the  four  fenior  fellows  would  not  do, 
T^ithout  the  confent  of  the  redlor;  this  claufe  could  not^ 
therefore,  be  applied  to  him. 

The  fubfeqiicnt  part  of  the  ftatute  dire<!^ed,  that,  if  the 
Xt&ox  was  deprived  by  the  biihop's  commifTary,  though 
four  of  the  fenior  fellows  confcfnted,  he  might  appeal  to  the 
biihop :  this  was  a  limitation  on  the  power  of  the  com* 
miflary,  but  there  was  no  qualification  of  the  power  of  the 
bi/hop  i   he  had  an  exprefs  power  to  proceed  to  the  depri- 

vation 


OF    CORPORATIONS,  JI7 

yation  of  the  reflor,  not  only  by  the  gisner^  W0j4$>  by 
which  he  was  appointed  vifitor,  but  by  paxticular  word^ 
for  that  purpofe,  in  the  very  ftatute  j  thea  fomi?  words,  h^ 
faid^  muft  be  fhewn  to  qualify  this  power :  for  his  part  hi? 
could  find  none ;  he  found  fome  that  qualified  the  powej 
pf  the  comoiiiTary,  but  none  that  ^fFe£(ed  that  of  the 
bilhop. 

It  had  been  objedled^  he  faid,  that  it  w^  unreafqnabl^ 
to  imagine  the  founder  (bould  give  a  greater  authopty  tP 
the  yifitor  over  the  recSlor,  than  the  fcholars.-^^i^^But  th^ 
queftion  was  not,  what  was  reafofiable  or  proper  for  the 
founder  to  do,  but  what  he  had  adlually  done;  if»  on 
the  perufal  of  thefe  ftatutes,  it  appeared  he  h^d  g;ivcn  the 
bifhop  fuch  an  abfolute  authority,  it  was  not  in  the  power 
of  the  court  to  controul  it,  for  any  imagined  unreafonablcr 
nefs ;  he  had  fuch  an  intereft  in  what  was  of  his  own  crear 
tion,  and  fuch  a  controul  over  it,  that  he  might  inveft  the 
yifitor  with  any  power,  that  he  pleafed  to  give  hini,!— 9^ 
If  he  had  invefted  Rim  with  any  uncontroulable  authority^ 
}t  was  to  be  fuppofed  he  had  fome  reafon  for  fodging; 
although,  if  he  had  not,  it  was  not  material  j  bis  will  was  his 
reafon,  in  difpofing  and  ordering  his  own;  every  man  yiras 
inafter  pf  his  own  charity,  to  appoint  anc)  qualify  jt,  as  he 
pleafed.  On  the  whole,  it  appeared  to  him^  that  the  con- 
fent  of  the  four  ienior  fellows  was  not  necpflary  tp  the  dp* 
privation  of  the  redtor,  by  the  bifbop  in  his  vifitation. 

The  next  point,  he  faid,  was  no  more  than  thjs,  whe-r 
ther,  fuppofing  the  bifhop  had  an  authority  to  deprive  the 
reAor,  and  he  had,  in  fa£l,  by  his  Sentence,  deprived  hjm, 
the  ju/f ice  of  the  fentence  were  examinable,  in  any  of  the 
courts  of  Weftminfler  Hall  ?   This  queftion  naturally  dl- 

yided  itfelf  into  two  branches. 

i  J   ...,  \.  .■.••.  •         .... 

JFlRST, 


2l8 


THE     LAW 


First,  Whether  the  fufficiency  of  the  fcntence,  as  to  th6 
caufe^  were  examinable  in  the  courts  of  common  law? 

And,  Secondly,  Whether  the  truth  of  that  caufe,  fup- 
pofing  it  to  be  fufficient  to  ground  the  fentence,  if  true, 
could  be  the  fubje£l  of  enquiry  there  ? 

On  this  queftion,he  was  of  opinion,  that  where  fentence 
of  deprivation  was  given  by  him  who  was  the  proper  A^ifi- 
tor,  fo  created  by  the  founder,  or  by  the  law,  no  enquiry 
(hould  ever  be  made  into  the  validity  or  reafons  of  the  fen- 
tence; this  would  appear  if  it  were  confidered,  on  what 
the  authority  of  the  vifitor  was  founded :  here  he  confider- 
ed the  diftiii£lion  between  the  two  forts  of  aggregate  cor- 
porations ;  thofe  which  were  intended  for  public  govern- 
ment, and  thofe  for  prifate  charity.  The  latter,  he  faid, 
being  founded  and  endowed  by  private  perfons,  were  fub- 
je<9:  to  the  private  government  of  thofe  who  ereSed  them, 
and  therefore,  if  no  vifitor  were  appointed  by  the  founder, 
the  law  appointed  the.  founder  and  his  heirs  to  be  vifitors : 
the  founder  and  his  heirs  were  patrons,  and  were  not  to  be 
guided  by  the  common  known  laws  and  rules  of  the  king- 
dom \  but  fuch  corporations,  as  to  their  own  affairs,  were 
to  be  governed  by  the  particular  laws  and  cbnftitutions 
affigned  them  by  the  founder.— It  had,  indeed,  been  faid, 
that  the  common  law  did  not  appoint  a  vifitatlon  at  all ; 
he  thought  other  wife;  the  law  did,  in  AzkOt  of  a  particu- 
lar appointment,  make  the  founder  vifitor;  and  it  was  not 
at  his  pleafure  whether  there  fhould  be  a  vifitor  or  not ; 
but  if  he  was  filent,  during  his  own  time,  the  right  woul4 
defcend  to  bis  heirs  {a)^  fo  that  patronage  and  vifitation 
were  neceflary  confequents  on  one  another ;  this  vifita- 
torial  power  was  not  introduced  by  any  canons  or  confti- 


{a)  Yelv.  ^5.    %  Cro.  60.    8  Ed*  3>  70,    8  Aff.  29. 


tutions 


OF    CORPORATIONS.  219 

tutions  ecclefiaftical;  it  was  an  appointment  of  law^  it 
arofe  from  the  intereft  which  the  founder  had  in  the  pro- 
perty afiigned  to  fupport  the  charity;  and  as  he  was  the 
author  of  the  charity,  the  law  gave  him  and  his  heirs  a  vl- 
fifatorial  power,  which  was  an  authority  to  infpeft  their 
actions,  and  regulate  their  behaviour  ^  he  pleafed. 

After  having  pointed  out  the  diftindion  between  the 
cafe,  where  the  objedte  of  the  founder's  charity  were  in- 
corporated, and  that  in  which  they  were  not,  but  the  ma- 
nagement of  the  property  was  left  to  truftees,  he  proceed- 
ed to  confider  what  might  further  be  obje£led  to  the  ad- 
miffion  of  the  vifitor's  power,  to  the  extent  for  which  he 
contended. 

It  might,  he  obferved,  be  faid,  that  the  vifitor  had  nO 
court ;  ihould  a  man  be  concluded  by  the  fentence  o\  one 
who  had  no  court?  it  was  not,  he  faid,  at  all  materia 
whether  he  bad  a  court  or  not  \  the  only  queftion  was, 
whether  he  had  a  jurifdidion?  if  he  had  jurifdi£tion,  and 
conuiance  of  the  matter  and  of  the  pcrfon;  and  he  gave 
fentence,  that  muft  have  fome  efFeft  to  make  a  vacancy,  be 
it  ever  fo  wrong;  but  there  was  no  appe^  if  the  founder 
had  not  thought  fit  to  dire£t  one ;  that  an  appeal  lay  in  the 
common  law  courts  of  the  kingdom,  was  certainly  not  cor-- 
re6t;  this  depended  on  the  government  fettled  by  the 
founder ;  it  was  a  conftitution  of  his  who  created  it,  and 
therefore  if  he  had  direfted  all  to  be  under  the  abfolute 
power  of  the  vifitor,  it  muft  be  fo;  he  might  have  diredled 
that  the  re6lor  (hould  continue  no  longer  in  his  place,  than 
the  bifliop  of  £xeter  fhould,  with  an  abfolute  defpotic 
power,  determine :  he  had  not,  in  the  prefent  cafe,  gone  fo 
far,  but  he  had  left  it  to  the  wifdom,  learning,  and  integrity 
of  the  biihop  to  )uc[ge  his  caufe  \  and  fince  the  founder  had 

confidence 


^%0  TKI(     LAW 

confidq^  lA  bim,  it  was  nott  to  hfi  prefumed  that  he  would 
a^  othcrwife  than  he  ought. 

It  was  plain,  he  faid,  by  all  the  authorities  of  the  books^ 
a(id  by  the  mode  of  pleading,  that  the  power  of  die  vifitor 
was  fuch  as  hp  defcribed  it>   if  a  fei^ence  of  deprivation 
were  pleaded,  it  was  not  neceilary  to  (hew  the  caufe ;  it 
was  not  travfrfabU^  even  in  a  vifitation,  when  it  was  by 
the  vifitatprial  power  {a) :   if  this  rcftory  had  been  a  foje 
college,  and  pot  a  corporation  aggregate  of  redor  aijd 
fcholafs  i  and  Dr.  Bury  had  brought  an  affize,  and  this  dc^ 
privation  had  been  pleaded  to  it;   it  would  have  been  a 
^Qod  plea,  to  i}ieW9  that  the  vifitor,  for  certain  cauies,  had 
deprived  him ;   and  this  would  not  have  been  traverfabU  ; 
tot  every  thing  that  was  traverjabk  muft  be  exprefled  in 
certainty  >   and  if  it  was  a  good  plea,  and  not  traveriable, 
it  was  not  to  be   queftioned.    ■        It  was"  ftrange^  that 
pleading  a  jfentence  without  a  c^ufe  (hould  be  good,  and 
that  the  iinding  of  a  fenteqce  in  a  fpecial  verdi£b  fhoi^ld  not 
|)e  as  good,  and  as  conclufiye  to  the  party  \   it  was  a  rule, 
that  things  were  to  be  fet  forth  with  more  exa<£hiefs  in 
pleading,  than  in  a  fppcial  verdi£t;  and  if,  in  pleading,  it 
W^re  not  traverfabU^  the  ^gument  was  the  ftrongeft  th<|t 
could  be,  that  no  enquiry  could  be  made  into  the  caufe ; 
for  If  it  could,,  a  fairer  opportunity  muft'  necei&rily  be 
given  for  it  in  pleading,  than  on  a  fpecial  verditfl,  which 
Concluded  the  parties  as  to  the  faA  that  was  found :  but 
^1)  the  p^eped^e^ts  in  pleading,  proved^  tha(  no  cjiufe  ne^d- 
fi.d  JO  be  ihj&wn. 

With  re(pe£l  to  there  being  no  appeal  from  an  arbir 
tf-ary  fentence,  it  muft  be  confefTed  there  was  fome  hardrw 
in  .^is,  becaufe  the  jparty  was  concluded  by  one 

{a)  RaftaH's  Ent,  f.  x,    irH.  7,  t7,  axid  7  Co.  Kenn's  ca(e. 

judgment: 


OF  cbupdiiXTiONS.  2it 

Judgment :    Ais  certiinfy  wsi  feVere  updn  tfie  f^BtSt ;  but , 
it  drd  ndt  Icficn  the  vaKdity  of  the  fcbttoci^  not  did  it^  by 
any  means,  prove,  that  there  muft  necefl&ily  fee  fofafle  Wif^f 
of  examining  the  inatter  at  law  In  a  judiciU  ^ffWKfiifediAg. 

Tf  the  conHitution  had  bcfeft,  that  if  (kt  vifitor'a^ftrived 
the  r^ftor,  then  it  fhouM  be  in  his  po'Wfer  "to  al^eal  to  tl& 
archbiffiop  of  Caritcfrbury,  it  Wotild,  perhaps,  haVb'beeh 
inore  Equitable ;  bitt  in  that  cafe,  if  there  bad  beeh  ah  Ap- 
peal, and  the  fentertce  had  ndt  been  feverfed,  then  tUfe  to- 
privation  would  have  been  in  force,  as  every  one  woidd  ^• 
mi^  and  irreinediable  in  a  court  of  law ;  and  he  did  n(k 
IchoW  any  authority  thiat  inade  the  fentence  the  ^eaker^ 
'becaufe  it  was  barred  of  an  appeal.-^Thecafe  of  Cawdrfr 
Md  the  high  commiffion  court  had  been  mentioned;  thafc 
was  a  cafe  in  which  fentehce  of  dej^vation  was  giveh 
"kgainft  a  man,  and  there  was  no  appeal.  In  the  t^e  of 
Allen  and  Nafli(^)  the  fentence  was  found,  but  no  catifb 
fer  it  fheWn  j  yet  it  was  held  to  be  well  enough,  though  n6  - 
appeal  lay,  the  fentence  being  in  the  high  comtxili&dh 
court.  Hdtvwas  this  cafe  to  be  diftinguiflied  frotn  thfe 
'prefent?  It  had  been Yaid,  ithat  that  was  by  virtue  bf'ihb 
^ccledaftidd  law :  was  it  the  eccleiiaftical  law  thit  a  miti 
ibblifd  be  concluded  by  one  fentence  without  ah  appeal? 
^o!  It  was  becaufe  the  fentence'was'giverlby*ihehigh 
commiffion  court,  which  had  jurifdidion ;  yet  the  fentehce 
ix^  not  the  weaker  or  more  traverfeble,  becaufe  there  tras 
no  appeal. 

The  oiily  reafon,  he  could  fee,  for  which  it  was  con- 
tended the  court  might  enquire  and  examine  this  inatter, 
was,*thatdie  party  was  concluded  without  appeal,  fcr  it 
muil  be  agreed,  that  if  an  appeal  did -lie  intHecafe,  it 
Vould  not  be  examinable  ih  this  court. 

(«)  Jonto,  393. 

Where 


328  THE    LAW 

Wheks  did  the  diiFerence  lie  ?  it  was  by  the  ecclefi- 
aftical  conftitution  that  thefe  commiffioners  bad  their 
power;  but  diat  was  eftablifhed  by  the  law  of  the  land, 
and  fo  was  this  power  of  the  vifitor ;  the  one  derived  his 
authority  as  much  from  the  law  as  the  others ;  if  then,  in 
die  one  cafe,  the  fentence  was  conclufive,  why,  by  the 
fame  reaibn,  fliould  it  not  be  fo  in  the  other  ?  It  was  fo  in 
die  cafe  of  Bird  and  Smith  (a)j  where  a  man  was  deprived 
for  not  conforming  to  the  canons ;  a  cafe  certainly  very- 
hard  ;  for  all  the  canons  were  not  certainly  according  to 
law,  nor  any  of  them  binding  here,  further  than  as  they 
were  received  and  allowed,  time  out  of  mind :  he  then  ad- 
verted to  the  cafes  of  Coveney  and  Baggs  (^},  and  pointed 
wt  the  miftakes  on  which  the  aflertions  in  thefe  cafes  were 
founded. 

He  faid,  he  could  not  conceive,  in  what  the  difference 
lay,  between  this  cafe,  and  that  of  a  mandamus :  in  the 
cafe  of  Appleford,  a  mandamus  was  brought  to  reftore  him 
to  his  fellowlhip.  It  was  returned,  that  by  the  ftatutes  6f 
the  college,  for  mifdemeanour,  they  had  power  to  turn  him 
out,  that  the  bifhop  of  ^Winchefter  was  vifitor,  that  he  was 
turhed  out  pr$  criming  enormia  and  that  he  had  appealed  to 
the  bifliop,  who  had  confirmed  the  expulfion,  and  the  par- 
ticular caufe  was  not  returned.  I  know  it  well,  faid  his 
lordfliip,  for  I  was  of  counfel  for  the  college,  and  we 
omitted  the  caufe  in  the  return  for  that  reafcn,  becaufe  we 
thought  it  not  fufficient.  It  was  ftrongly  urged,  that  we 
ought  to  (hew  the  caufe  of  expulfion  in  the  return,  to  bring 
it  within  the  compafs  of  the  ftatute.  It  was  anfwered,  no, 
there  was  a  local  vifitor  who  had  given  the  fentence,  and 
whether  it  were  right  or  wrong,  the  party  was  concluded 
by  it}  ^and  the  members  of  the  college  muft  fubmit  to  fuch 

(a)  Moore,  781.  (b)  Vid,  ante,  p.  178;  179,  *07, 

laws 


OF    CORPORATIONS.  223 

laws  as  the  founder  was  pleafed  to  give  them ;  and  Mr. 

Appleford'wasnotreftored:  this,  continued  he,  is  anex- 

prefs  authority  to  guide  us  in  our  judgment  in  this  cafe; 

here  a  local  vifttor  has  given  a  fentence,  and  thereby  a£tu- 

ally  deprived  the  rector,  of  his  place  j   and  why  the  law 

(hould  not  be  the  fame  when  the  cafe- appears  in  a  fpecial 

yerdidt  in  an  Qje£lment,  as  m  a  return  to  a  mandamusy  no 

reafon  can  be  given.      At  this  rate  we  fhall  always  be  out 

at  fea,  and  not  know  when  we  ihall  come  to  fliore.    I 

thought  we  had  come  to  fome  certainty  fince  that  cafe  of 

Appleford,  that  where  there  is  a  vifitor,  and  he  has  power 

to  proceed  to  deprivation,  this  court  ought  to  give  credit  to 

the  juftice  of  his  proceedings  as  much  as  to  thofe  of  any 

judge;   and  I  remember  that  my  Lord  Hale  took  it  for 

clear  law,  that  fuch  a  fentence  was  as  ftrong  as  a  judgment 

in  an  affize  to  bind  the  party  deprived.     He  is  made  a 

judge,  and  particularly  deiigned^by  the  founder.    But  he 

hath  his  authority  from  the  law,  and  he  is  to  judge  by  the 

.  fiatutes.    The  founder  has  trufted  this  particular  matter  Jx> 

his  difcretion,  and  why  ihall  we  fufpedl  him,  that  he  will 

not  do  right?    Then  for  the  next  point  j  fuppofe  the  caufe 

is  examinable,  yet  it  need  not  be  found  in  the  verdi<S;  for 

if  a  deprivation  be  found  by  the  jury,  we  muft  prefume  it 

to  be  juft  J    we  are  to  give  credit  to  a  man  who  exercifes 

judicial  power,  if  he  keep  within  his  jurifdi£tion.     The 

law  has  regard  not  only  to  courts  of  record,  and  judicial 

proceedings  there,  but  to  all  other  proceedings,  where  the 

perfon  who  gives  his  judgment  or  fentence^  has  judicial 

authority;    and   you  fhew  no  fault  in  the  fentence;  the 

jury  do  not  fo  much  as  find  that  the  matter  and  ground 

of  it  is  untrue  or  infu6S.cient  in  point  of  law,  or  any  other 

fault  or  defedl  whatfoever ;  but  it  appears  that  the  cauie 

of  deprivation  is  good,  it  being  for  contumacy.    If  the 

bifhop 


MUtkop  'had  powtr  toirtfit  in  June,  as!  diink  be  had,  and 
^Mtftiddeitd  by  the  iiuittliig  of  the  doois,aDn  which  he  went 
••#ajr  withoat  doing  any  thing,  and  came  4igain  in  July, 
^risoi  be  held  his  vifitation ;  and  they  canried  themfelves 
^contumadonfly  and  ftffofed  to  fubmit  to  his  authority;  this 
^!M6  ^0Htr^  ffiiii/ui  debifum.    It  is,  by  the  coniftitution  of 
^e'Cdllege,  infepartdyly  incident  to  their  places,  that  both 
^Iteadand  members  -fhoUld  fabmit  to  the  vifitation.    And 
<coiltumacy  is  held  a  ^ood  caufe  of  deprivation.    It  was 
•lidd  a-good  caufe  in  >Bird  and  Sniiih'-s  cafe,  and  in  the  cafe 
iefAIlenaHdNalh;  pi^dfttitrefraSiarius.    Now,  diough 
^fs'benotoneof  thecaufes  mentioned  in  the  ftatutb  of 
vitepriv^ion,  yet -when  the  bifliop  comes  to  make  avifita- 
ifion  and'the  members  refufe  to  fubmit,  it  is  certainly  con- 
*trary  to  f!hat  duty  which  their  places  oblige  them  to  per- 
Vorm.    ^I  do  not  think  that  entering  a  proteftation  againft 
fthe^ifitation  was  any  fault;   that  was'furely  very  lawful; 
'but^their  turning  their  backs'upen  the  vifitor,  and  not  ap- 
pearing updn  fammons,  and  refafing  to  (iibmit  to  his  exa- 
'ttllnation,'Was  an  ci{ence,and  contrary  to  that  duty,- which 
^c  ftatutes  requh-e.    For  the  vifitor  is  to  enquire  into  the 
'ftate  of  the  college,  and  each  one's  particular  behaviour 
"and  conformity  to' the  college  ftatutes;  and  if  he  comes  to 
'^mscke  fadi  an  inquiiition,  and  the  head  or  the  members, 
abfenftheittfelves,  or  will  not  appear  to  be  examined,  it 
*terids  to  the  fiibverfion  of  the  whole  conftitution  of  the 
college,  \rtiich  is  a  good  caufe  of  deprivation.    And  diough 
'there  is  a  particular  ftatute  which  declares  for  what  caufts 
'the  teftorlfaouldbe  deprived,  of  which  this  is  none,  yet  thM 
'^does' not  extend  to  a  deprivation  in  time  of  vifitation,  but 
'it  fliews  in  «what  manner  the  college  fhall  proceed  to  get 
'the  reftor.  If  guilty  of  ftich  offences,  removed  :   they  may 
complain  to  the  vifitor,  when  he  is  not  in  his  vifitation,  if 

"he 


J 


OF    CORPORATfONS.  225 

he  wafte  his  revenues,  or  behave  himfelfrcandaloufly,  and 
upon  requeft)  will  not  refign,  and  they  may  article  againft 
him,  before  the  vifitor,  out  of  his  vifitation ;  but  when  he 
comes  to  execute  his  vifitatorial  power  in  the  quinquen- 
nial vifitation,  he  is  to  enquire  into  all  the  affairs  of  the 
college,  and  he  is  not  to  proceed,  in  that  cafe,  upon  the  in* 
formation  of  the  fellows,  but  he  may  proceed  even  to.  de- 
privation wherever  he  fees  caufe :  and  contumacy,  I  take  il^ 
is  a  caufe  of  forfeiture  of  his  ofEce,  being  an  offence  againft 
the  very  effence  of  his  place,  by  which  he  is  fubje£l  to  the 
power  of  the  vifitor;    and  if  he  goes, about  to  evade,  or 
contumacioufly  refufes  to  fubmit  to  hi3  power  and  autho- 
rity, it  is  an  offence  againfl  the  duty  of  his  place,  and  a  good 
caufe  of  deprivation.     So  that  I  hold,  in  this  cafe,  Firfty 
That  the  bifhop  of  Exeter  has  a  vifitatorial  power  vefled  in 
him  to  deprive  the  redor,  without  the  confent  of  the  fe- 
nior  fellows.     Secondly,  that  the  juflice  of  this  fentence 
is  not  to  be  examined  here.    And,  Thirdly,  if  it  were,  and 
the  caufe  were  ne^effary  to  be  {hewn,  si  think  contumacy 
is  a  very  good  caufe  of  deprivation>  being  an  affront  to 
the  vifitor  in  his  vifitatorial  authority.    Though,  1  do  be- 
lieve, Dr.  Bury  did  not  defign  to  affront  the  bifhop,  but 
to  aflert  his  right ;    yet  ignorantia  juris  non  e'^cufat*  .  If  the 
law  be  that  he  ought  to  fubmit,  which  he  refufes,  we  can- 
not help  it.    I  am  far  from  being  fuch  a  judge  as,  fhall 
lay  an  intolerable  yoke  on  any  one's  neck;  but  I  muft  fay, 
if  the  head  and  members  of  a  college  will  receive  a  charity 
with  a  yoke  tied  to  it  by  the  founder,  they  mufl  be  (^on- 
tented  to  enjoy  it  m  the  fame  manner  in  which  they  re- 
ceived it  from  him.    If  they  will  have  the  one,  they  mufl 
fubmit  to  the  other.      And  fo  my  judgment  ought  to  be 
given  for  the  plaintiff:  birt  my  brothers  are  all  of  a  differ- 
VoL.  II.  Q^  ent 


226  TH£     tAW 

ent  o|Mnion9  and  fo  I  fubmit  to  it;    the  defendant  muft 
have  his  judgment  (a). 

There  is  no  quefiion  but  the  founder  intended,  that  the 
fecular  power  fhould  not  intermeddle  in  any  cafe,  with 
the  members  of  his  corporation.  The  founder  was  a 
biihop,  as  the  greater  part  of  the  founders  of  colleges  were ; 
they  were  founded  by  them  in  times  of  Popery,  when  the 
clergy  in  general  took  themfelves  to  be  exempted  from  the 
jurifdi£lion  of  the  King's  courts;  fo  that  no  doubt  the 
ftatutes  of  this,  and  moft  other  colleges,  were  com{>i}ed 
with  a  view  to  exclude  the  infpeftioa  of  the  fecular  au« 
thority  (h). 

Though  the  general  principles  laid  down  here,  by^ 
Holt,  may  be  taken  for  law,  yet  it  appears  that  judgment 
QUg^t  to  have  been  ultimately  for  the  plaintiff,  becaufe  the 
bifhop  did  not  pretend  to  a&  by  virtue  of  his  gemral  vifi- 
tatorial  power,  bat  under  the  ftatutes;  otherwife  he  had 
no  occafion  to  fufpend  the  ienior  fellows,  in  order  to  have 
a  ihew  of  having  the^XMifent  of  four  of  the  fenior  fellows. 

From  this  cafe  it  is  apparent,  that  where  there  isa  ge* 
nend  vilitor,  and  the  time  of  his  general  vifitation  is  not 
rcflri^ied  by  the  ftatutes  to  particular  periods,  he  may  viiit 
whenever  he  pleafes;  for  in  this  inftance  the  only  ob- 
je£iion  to  the  vifitation^  in  which  the  vifitor  deprived  Dn 
Bury,  arofe  from  his  having  made  a  vifitation  within  Eve 
years  before,  and  that  objection  was  anfwered  by  (hewing 
that  the  afls  on  which  it  was  founded  did  not  amount  to  a 
vifitation. 

(tf)  Vid.  this  cafe  at  full  length  in  Skinner,  447—512,  and  C.  J, 
Holt's  argument  in  %  Term  Rep.  346,  which  is  verbatim  the  fame  with 
that  in  Skinner. 

{b)  Skin,  513, 

It 


OF    CORPORATIONS.  !2a7 

It  is  likewife  apparent,  that,  though  the  time  of  a  ge-^ 
neral  vidtation  be  reftri£led,  the  vifltar  may  at  any  time 
take  cognizance  of  any  difpute  between  the  jtnembers,  on 
an  appeal  made  to  him  for  that  purpofe.  This  is  particu- 
larly enforced  by  Holt,  and  not  difputed  by  the  other 
judges. 

Whether  a  perfon,  appointed  by  the  ftatutes  of  the 
founder  to  take  cognizance  of  certain  particular  things^ 
be  general  vifitor,  without  general  words  giving  him  th^ 
authority,  depends  on  the  nature  of  thofe  particular  things, 
and  on  the  terms  in  which  his  jurifdi£tion  over  them  is 
given:  when,  therefore,  a  queftion  arifes  about  the  extent 
of  the  perfon's  power  who  claims  to  "be  viiitor,  recourfe 
muft  be  had  to  die  flatutes. 

Edward  the  third,  by  letters  patent  under  the  great 
^1,  granted  a  licence  to  Elizabeth  de  Burgo,  Lady  Cbre, 
to  found  and  endow  a  college  or  hall  in  the  'univerfity  of 
Cambridge  i  in  purfuance  of  this  licence  (he  founded  Clare 
Hall,  and  for  the  regulation  of  the  mafter,  fellows,  and 
fcholars,  gave  a  body  of  ftatutes,  among  which  was  one  in- 
titled  de  amotione  magijiri^  by  which  ihe  ordained,  that  if 
the  mailer  fliould  be  legally  convi£led  of  certain  fpeciiic 
offences,  or  (hould  condu6l  himfelf  deceitfully  or  negli- 
gently in  the  care  and  government  of  the  houfe,  he  ihould  be 
removed,  and  that  the  chancellor,  to  whofe  jurifdiSiion^  vtfi^ 
tvtioriy  carrel  ion  and  punijhment  in  all  things  y  flie  fubjefted 
the  mafter,  or  the  vice-chancellor  in  the  abfcnce  of  the 
chancellor,  together  with  two  dodlors  or  matters  of  the 
ujniverfity,  fliould  take  cognizance  of  the  matter's  condud, 
and  with  the  confent  of  thofe  matters  or  doftors,  fiiould, 
definitively  and  in  a  fummary  manner^  without  a  formal 
judgment^  and  even  without  writing^  remove  him  from  the 
mafterlhip,  for  offences  of  the  nature  before  pointed  out, 

0,2  without 


228  T  H  I     t  A  W 

% 

without  any  appeal  from  the  fentence,  or  remedy  by  com- 
mon law* 

Akothbr  ftatute  fubjed:ed  the  fellows,  fcholars,  and 
fervants  of  the  houfe,  to  the  infpeAton  and  correction  of  the 
matter,  to  whom  it  gave  the  power,  tf  the  quality  of  their 
fxceffis  fhould  require  it,  to  expel  them  from  th^  houfe,  and 
deprive  them  of  all  the  privileges  of  the  college,  in  a  fum- 
mary  manner,  witbbut  noife  and  form  ofjudgnunt^  and  with- 
mit  writing:  but  it  was  provided,  that  if  any  of  the  fellows 
er  any  other  Ihould  feel  himfelf  aggrieved  by  the  fentence 
of  the  mafter,  he  might  appeal  to  the  chanceUor  or  vice- 
chancellor. 

There  was  another  ftatute,  which  run  thus :  *^  Item 
volumus  quod  didlus  Cancellarius  magiftrum  et  omnes  fo- 
cios  et  fingiilos  domus  praedidae  annis  iingulis  fi  opus  fu- 
erit  poterit  vifitare,  et^  quid  inter  eos  repererit  corrigendum^ 
illud  cum  aflenfu  duorum  do<Slorum  vel  magiftrorum  prout 
in  confimilibus  fuperius  eft  exprefTum  debite  juxta  juris  et 
noftrorum  ftatutorum  exigentiam  corrigat  et  puniat." 

By  another  ftatute,  it  was  ordained,  that  if  any  thing 
Ihould  be  found  doubtful  or  obfcure  in  the  ftatutes,  which 
could  not  be  amicably  determined  by  the  mafter  and  fel- 
lows, it  fhould  be  in^mediately  referred  to  the  chancellor  or 
vice-chancellor,  who,  by  the  advice. and  confent  of  two 
doctors,  or  of  two  batchelors,  ftxould  interpret  doubtful 
parts. 

The  foundrefs,  having  referved  certain  powers  to  her- 
felf,  during  life,  exprefsly  declared,  that  after  her  death, 
thefe  fliould  not  belong  to  her  heirs. 

These  ftatutes  being  fet  forth,  in  a  cafe  before  Lord 
Hardwicke,  he  faid  it  appeared  clearly  to  him,  that  a  ge- 
neral vifitor  was  conftituted  by  them :  that,  inftead  of 
creating  a  vifitor  by  general  words,  the  foundrefs  had  di- 

^     diredled 


OF    CORPORATIONS.  229 

refled,  by  the  ftatutes,  that  the  chancellor  ihould  viiit  the 
college,  once  in  every  year,  et  ft  quid  inter  eos  refenrit 
arrigendumy  illudy  fcff .  corrigat  et  puniat  j  if  there  had  been 
nothing  more  than  this,  he  would  have  been  general  vifitof) 
and  if  he  found  a  perfon  taking  part  of  the  revenues  im-» 
properly,  he  might,  under  the  power  here  given  him,  rc« 
move  fuch  perfon  in  favour  of  him  who  had  the  right. 

In  the  next  place  the  foundrefs  had  direded,  that  the 
chancellor,  with  his  affiftants,  fhould  conftrue  the  ftatutes 
and  determine  any  doubt,  and  flie  had  further,  by  expreft 
words,  excluded  her  own  heirs:  nothing,  his  Lordfhip 
faid,  could  be  ftronger  than  the  exclufion  of  her  heirs^  to 
fhew,  fhe  meant  to  give  the  chancellor  a  general  viiitatorial 
power:  he  was,  therefore,  clearly  of  opinion,  that  tbci 
chancellor  was  vifitor  of  this  college  {a). 

The  executors  of  Margaret   Counteft  of  Richmond, 
mother  of  Henry  the  feventh,  according  to  the  direfHons 
of  her  will,  purchafed  from  the  bifliop  of  Ely,  widi  the 
confent  of  the  prior  and  convent,  the  houfe  or  priory  of 
Saint  John,  in  Cambridge,  and  there  founded  Saint  John's 
College.    Fiiher,  bifhop  of  Rochefter,  one  of  the  execu- 
tors, by  the  authority  of  the  reft  gave  it  a  body  of  ftatutes. 
The  mafter  of  the  college,  by  the  oath  prefcribed  to  him^ 
in  thefe  ftatutes,  was  bound,  as  foon  as  he  could  within  a 
month  after  the  commiffion  of  fuch  offences  by  the  fellows 
and  fcholars,  as  he  was  himfelf  unable  to  punifli,  to  re- 
veal the  names  and  firnames.  of  the  offenders,  with  th^ 
quality  and  degree  of  the  offences,  to  the  hijhop  of  Efyfor 
the  time  beings  or  the  chancellor  or  vice  chancellor  of  the 
uuiverflty,  for  their  corredtion  and  punifttment, — By  the 
fame  oath,  if,  on  his  account,   any  matter  of  diilention 
arofe  within  the  college,  and  could  not,  within  five  dayS| 

{a)  Attorney  general  v.  Talbot.    3  Atk,  66x>  67s. 

0,3  ht 


230  THE    LAW 

be  reafonaWy  and  peaceably  fettled  by  the  prefident,  dean, 
dr  treaforers,  and  two  others  of  the  feven  fehiors  of  the 
college,  he  was  to  fubmit  himfelf  to  the  order^  judgment^ 
dicreey  and  authority  of  the  chancellor  of  the  univerfsty  for 
the  time  being,  the  provoji  of  King's  and  the  majier  of 
CbryTs  College^  in  the  fame  univerfity— and  to  abide  by 
the  fentence  of  them,  or  two  of  them,  without  appeal. 

By  the  chapter  de  morum  honeftate^  et dijfentionihts fedan^ 
disy  if  any  difpute  arofe  between  the  matter  and  any  of  the 
fellows,  which  could  not  be  reafonably  and  peaceably  de- 
termined by  the  matter,  deans,  and  feven  feniors,  within 
eight  days,  the  contending  parties,  within  three  days  after 
thofe  eight,  were  to  choofe  two  fellows,  who  within  two 
days  of  thiir  elcftion  were  to  carry  the  complaint  to  the 
provofl  of  King's^  the  majier  of  Chri^s^  and  the  matter  or 
warden  of  Saint  Michaers  College,  and  whatever  two  of 
thefe^  being  confulted  for  the  time  fliould  determine,  sdl 
were  by  virtue  of  their  oath  to  obey, 
*  The  chapter  de  modo  procedendi  contra  magijirunif  after 
pbintihg  out  a  mode  of  proceeding  againft  him  within  the 
college  for  certain  offences  particularly  defcribed,  ordered 
that,  in  cafe  of  his  difobedience,  complaint  Ihould  \se 
made  to  the  lord  bljhp  of  Efyj  or  in  his  abfence  in  remotis^ 
to  the  v/V^  general  of  the  fpiritualities,  or  In  the  vacancy 
of  the  fee,  to  the  guardian  of  the  fpiritualities. — It  then 
direfted  that  the  bijhop  of  Ely^  or  in  his  abfence  in  remotis^ 
his  vicar  general^  or  in  the  vacancy  of  the  fee,  the  guar-» 
dian  of  the  fpiritualities  ihould  take  cogmzznce fummarify 
and  extrajudiciaify  of  all  offences  alleged  againft  the  majlery 
and  if  he  found  the  accufations  to  be  true,  he  (hould  im- 
mediately, or  at  leaft  within  three  days,  remove  him  from 
his  office  without  further  delay,  and  enjoin  the  fellows  td 
proceed  to  the  election  of  a  new  matter,'  according,  to  the 

dirediona 


OF     CORPQR  A-T  IONS.  2  U 

dtrej&lions  of  the  ftatutes;  cessartibu^  appbu^atio- 

NIS,     RECUSATIONIS,     QVEREVJE    AUT    CUJUSCUNCJUE 

ALTERius  juris  aut  fa6li  remediis  quibus  hujuihno^i 

AMOTIO  VALE  AT  IMPEDIRX  AUT    DIFFERRI;  quSB  OOjl- 

nia  IRRITA  eflc,  volumus,  ftatuimuset  decernimus. 

TuE^fisitute.de  modo  procedendi  contra  focios^  fcholares^  et 
difcipulosy  in  majoribus  criminous j  gave  to  the  mailer,  affiftcd 
by.  the  preftdeiit)  d^aiis^  and  treafurers,  or  at  leaft  oqe 
dean,  treafurer,  and  four  others  of  the  feven  feniors,.to 
examine  complaints  againft  any  of  the  fellows,  &c.  and 
if  found  guilty,  to  remove  them  from  the  college,  without 
rtnudy  of  appeal  or  complaint • 

By  the  ftatute  de  ambiguis  4t  obfcuris  interpretandis^power 
was.  referved  to  bKhop  Fiiber  during  his  life,  to  add  to, 
reform,  interpret,  alter,  and  difpenfe  with  thefe  ftatutes ; 
but  every  body  elfe  was  prohibited  from  difpenfing  with 
them,  or  making  any  new  ftatutes,  either  with  refpeft  to 
the  whole  college  or  any  member  of  it^  and  if  the  chancel- 
lor, or  vice  chancellor,  or  the  reverenb  father  the 
bi^p  of  Eiyy  or  any  one  elfe,  fhould  attempt  the  contrary, 
and  endeavour  to  introduce  any  new  ftatute  different  from 
the  foregoing,  the  mafter  and  all  the  other  members  of  the 
college  were  difcharged  from  the  obligation  of  obedience 
under  the  pains  of  perjury  and  perpetual  removal  from  the 
college.  But  the  vijitation  of.  the  college  was  recom- 
mended to  the.  reverend  fathers  in  Chri/l  the  bifhops  of 
Ely,  to  whom  alfo  was  granted  the  prefentation  of  a  fit 
perfon  to  be  a  fellow  in  the  college.. 

The  ftatute  de  vifitatore^  reciting  the  confideiice  of  the 
author  in  the  benignity  of  the  moft  reverend  fathers  the 
kijhops  of  Ely^  and  the  hope  that  at  jio  future  time  they 
would  fuiFer  the  statutes  to  be  violated,  ordained,  ^'  that  the 
biibop  of  Ely  for  the  time  being,  as  often  as  he  fhould  be 

0^4  required 


J32  T  H  E     t  A  W 

required  ]^j  t^  mafter,  prefident,  deans,  and  treafurers, 
or  by  Ihe  mafter  and  four  of  the  feven  feniors,  or  by  five 
of  die  (ame  feven  feniors  in  cafe  of  the  oppofition  of  the 
mafter  or  prefident,  or  by  two-thirds  of  die  fellows,  and 
without  any  requifition,  from  three  years  to  three  years, 
might  by  himfelf  or  his  deputy  vifit  the  college 
and  duly  punifh  and  corred  the  offences  and  irregularities 
difcovered  in  his  vifitation,  and  do  every  thing  that  might 
be  neceilary  or  convenient  for  the  corrcdion  and  reforma- 
tion of  them,  even  if  he  Ihould  happen  to  proceed  to  the 
deprivation  or  amotion  of  the  mafter  or  prefident,  or  of 
any  fellow  or  fcholari  provided  the  ftatutes  required  fuch 
amotion  — The  party  fummoned  to  judgment  was  com- 
manded perfonally  to  anfwer  before  the  bifhop  or  his  com- 
miflary,  without  any  privilege  of  appeal  from  the  fentence ; 
but  it  was  provided,  that  if  the  matter  proceeded  to  the 
deprivation  of  the  mafter,. or  expulfion  of  a  fcholar,  the 
confent  of  four  of  the  feven  feniors  of  the  college  then 
prefent  in  the  univerfity  ihould  concur,  and  that  without 
fuch  concurrence,  any  deprivation  or  expuffion  (hpuld  be 
void  :  in  the  cafe  of  the  amotion  of  the  mafter,  too,  even 
with  the  concurrence  of  four  of  the  feven  feniors,  by 
the  bifhop's  commifTary,  an  appeal  was  given  to  the 
bifhop  himfelf,  but  without  further  appeal. 

The  ftatute  then  proceeded  thus :  "  praeter  hunc  vifita- 
donis  modum,  nos  alium  nullum  Elienfibus  epifcopis  con- 
cedimus;  fed  nee  a  fociis  tolerari  permittimus,  aliquo 
paAo :  quod  etiam  eis  mandamus  in  vim  juramend  ftti* 
JScimus  enim  quod  eximia  virago  domina  fundatrix,  dum 
in  humanis  egit,  impetravit  ab  Elienfi  epifcopg  qui  tunc 
fuerar,  jus  fundationis,  ea  quidem  rationed  ut  ex defoiatis 
xdiculis  tarn  illaftre  collegium  erigeret:  quod  cum  efiece- 
rit  et  confummaverit  magnp  fuo  fumptu,  par  eft  ut  Elien- 

fcs 


^ 


OF    CORPOR-ATtaKS*  233 

(e$  epifcopi  nihilo  majorem  in  hoc  coUegio  fibi  vindicent 
audloritatem  quam  in  cxteris  academix  collegiis,  ubi  noa 
funt  fundatores." 

QuEBN  Elizabeth  afterwards,  as  heir  to  the  foundrefig 
gave  the  college  a  new  body  of  ftatutes  in  many  refpe^b 
iimilar  to  biihop  Pifher's,  but  the  flatute  de  viJHaUre  did 
not  contain  the  claufe  juft  mentioned. 

By  the  ftatute  which  prefcribed  the  mode  of  defying 
^  the  mafter,  it  was  ordained,  that  if  that  mode  could  not 
be  put  in  execution,  recourfe  fhould  be  had  to  the  vifitor, 
and  that  he  (hould  be  matter  whom  the  vifitor  alone  ihould 
appoint,  provided  he  anfwered  in  all  points  to  the  ftatute 
concerning  the  quality  and  office  of  mafter. 

By  the  chapter  relating  to  the  eledion  of  prefident, 
Ie6lurers,  and  other  officers,  it  was  ordained,  thatif  die 
mode  there  pointed  out  ihould  fail,  he  fhould  be  confidered 
as  eleAed  whom  the  majter  ahne^  if  he  (hould  happen  to 
be  within  the  Icingdom,  (hould  appoint ;  but  if  the  mafter 
Ihould  be  oiit  of  the  kingdom,  then  he  whom  the  hijhap  qf 
Efyj  vifitor  of  the  faid  college^  being  within  the  kingdom9 
ihould  appoint,  was  to  be  ele£led  into  the  6ffice.— The  iame 
directions  were  given  with  refpeflto  the  eledion  of  fellows* 

A  STATUTE  which  pointed  out  the  mode  of  proceeding 
againft  the  mafter,  and  expelling  him  for  certain  offences, 
ordained,  thatif  he  would  not  retire  of  his  own  accord, 
recourfe  fhould  be  had  to  the  bijhop  of  Ely^  or  in  his  ab« 
fence  in  remotis^  or  in  the  vacancy  of  the  fee,  to  the  chan* 
cellor  of  the  univerfity,  &c.  and  that  the  bijhop  of  Efy^ 
&c.  fhould  take.cognizancejof  the  complaint  in  a  fum- 
mary  and  extrajudicial  manner,  and  that  there  ihould  be 
no  appeal  from  his  fentence. 

The  ftatute  **  de  ambiguis  et  dbfcuris  interpretandis,'* 
after  referving  to  the  Queen  the  power  of  reforming, 

changing. 


3j4  THB  axw- 

changing,  aiid  difpenfing  with  thefe  ftatutes,  and  of  adding 
new  ones  if  need  Ihould  require,  prohibited  all  others  from 
exercifing  any  of  thefe  powers ;  and  if  the  chancellor  or 
vice  chancellor,  or  the  reverend  father  thebijhop  of  Efyy  or 
any  other  (hould  attempt  to  infringe  this  prohibition,  ab- 
folved  the  mafter  and  others  from  their  obedience :  but  the 
folution  of  any  doubt  about  the  meaning  of  the  ftatutes 
was  referred  to  the  hi/hop  of  Ely  for  the  time  being ;  and 
to  his  determination  the  college  were  ordered  to  pay  full 
obedience.-— The  ftatute  then  recommended  in  exprefs 
terms  the  vijitation  of  the  college  to  the  reverend  fathers 
the  bifhops  of  Ely ;  to  whom  alfo  it  granted  the  prefen- 
tation  of  one  fit  perfon  to  be  a  fellow,  interpreting  that 
iitnefs  to  be  the  pofleffion  of  the  qualities  required  by  the 
ftatutes,  and  prohibiting  the  college  from  receiving  any 
other. 

The  ftatute  **  de  vifitatore"  was  nearly  to  the  fame 
effed  as  that  of  the  fame  title  in  bifhop  Fifher's  ftatutes, 
except  that  it  did  not  impower  him  to  vifit  by  his  ccwn- 
miilary,  nor  contain  the  claufe  prohibiting  him  from  vifit- 
ing  in  any  other  manner  than  that  pointed  out  by  the 
ftatutes. 

The  ftatute  "  de  modeftia,  et  morum  urbanitate"  or- 
dained, that  all  domeftic  difputes  ihould  be  judged  and  de- 
cided within  the  college,  and  that  he  "  qui  foras  aliquem 
in  JUS  vocaverit,"  without  the  confent  of  the  mafter,  or,  in 
his  abfence,  of  the  greater  part  of  the  fentors,  fiiould  be  re-, 
inoved  from  the  college.-'F— -Difputes  between  fellows  and 
^holars  were  to  be  decided  by  the  mafter,  &c.  but  a  dif- 
pute  between  the  mafler  and  any  of  the  fellows,  by  the 
prefident  and  the  reft  of  the  feniors,  &c.  but  if  that  could 
not  be  done  within  two  days,  the  difpute  was  to  be  re- 
ferred  to  the  provoft  of  King's  College,  and  the  mafters  of 

Trinity 


OF    CORPORATIONS.  Sjj 

Trinity  and  of  Chrift's ;  and  he  who  fhould  difobey  the 
fentence  of  them,  or  two  of  thtm,  fhould  be  removed  from 
the  college. 

A  DISPUTE  having  arifen  between  the  college  and  the 
bifliop  of  Ely,  on  the  queffion,  whether  the  lattrr  vi^as 
viiitor,  as  to  the  election  of  fellows,  thefe  two  fets  of  fta- 
tutes  were  laid  before  the  court  of  King's  Bench,  to  en- 
able them  to  decide  it. 

In  oppofition  to  the  claim  of  the  bifliop,  it  was  argued, 
that  the  founder  might  give  general  or  particular  powers 
to  a  vifitor :    if  he  gave  only  particular  powers,  and  the 
vifitor  exceeded  them,  his  proceedings  would  fo  far  be  void, 
Vifitatorial  power  was  not  to  be  inferred  by  implication, 
but  mi^fl:  be  conftituted  by  exprefs  appointment,  as  ap- 
peared from  the  cafe  of  Birmingham  fchool  (a) :  The  biihop 
of  Ely  was  in  n6  part  of  the  ftatutes  appointed  general 
vifitor  of  the  college,  but  particular  vifitor  only;-  the  ger 
neral  power,  therefore,  remained  in  the  crown,  as  heir  to 
the  founder:    particular  vifitatorial  powers  being  given' tp 
the  bifliop,  would  not  make  him  general  vifitor,  though  he 
was  recognized  in  other  parts  of  the  ftatutes,  under  the 
general  name  of  vifitor  :  an  executor  might  be  appointed 
with  limited  powers,  and,  in  fuch  ar  cafe,  if  he  were  men;- 
tioned  as  executor  in  another  part  of  the  will,  that  would 
not  make  him  general  executor.     In  the  chapter  "  de  am- 
bigius  et  obfcuris  interpretandis,"  power  was  referved  tp 
Queen  Elizabeth  of  adding  nev7  ftatutes  and  difpenfing  witli^ 
the  old;  and  immediately  after  the  bifhop  of  Ely  was  par- 
ticularly namejd  as  one  of  the  perfons  prohibited  from 
counterafting  the  ftatutes  ;    it  was  true  the  vifitation  wa^ 
'  recommended  to  him,  but  it  was  with  this  limitation,  to 
compcnfatc  which,  he  was  complimented  with  the  nomi- 

(/i)  Vid.  ante,  p.  187, 

*    .  niation 


2^6  THt   LAW 

nation  of  a  fellow;  but  the  mafter  and  fellows  were  to 
judge  of  the  fitnefs  of  the  perfon  named,  and  were  prohi- 
bited from  receiving  one  who  was  not  f^ty  though  prefented 
by  the  biihop,  which  (hewed,  that  he  was  not  univerfal 
arbiter  ai^d  incontroulable  judge.— The  ftatute  "  de  modo 
procedendi  contra  magiftrum"  gave  powers  to  the  chan- 
cellor of  the  univerfity,  and  others,  altogether  inconfiftent 
with  the  biihop's  claim  as  general  vifitor.  .  The  ftatute 
^  de  modeftia"  dire^ed'  all  domeftic  difputes  to  be  fettled 
<(;iV/(m  the  college ;  ordered  him  to  be  expelled  qui  y^rjx 
vdcaverit}  and  referred  the  determination  of  them  to  other 
perfons  excluflve  of  the  bilhop.—— The  ftatute  "devifi- 
tatore*'  gave  him  power  to  vifit  as  often  as  he  was  requeft- 
ed,  and  gave  him  many  minute  particular  powers,  which 
excluded  the  fuppofttion  that  he  was^^/j^r^/ vifitor.— — If 
then  the  bifhop  was  not  general  vifitor,  he  had  nothing  to 
do  With  ele£lions ;  for  there  was  no  fpecial  claufe,  which 
invefted  him  with  the  right  of  infpe£ling  them. 

Lord  Mansfield,  after  premifing  fome  obfervatlons 
on  the  convenience  of  the  vifitatorial  power,  proceeded  to 
obferve,  that  the  founder  might  delegate  this  power  either 
generally  or  fpecially ;  by  prefcribing,  in  the  latter  cafe,  a 
mode  for  the  exercife  of  zny  part  of  iti  but  that  if  a  mode 
of  vifitation  was  prefcribed,  in  any  particular  cafe,  that 
would  not  take  a|vay  the  general  powers  incidental  to  the 
office  of  a  vifitor :  and  of  thofe  incidental  powers,  that  of 
hearing  complaints  and  deciding  them,  had  in  the  cafe  of 
Philips  and  Bury  (//),  b^en  determined  to  be  one,  and  this 
latter  Included  a  jurifdidion  over  ele£Hons.~The  whole 
tenor  of  the  ftatutes  muft  be  examined,  to  fee  whether  the 
general  power  was  given  or  intended  to  be.  given.  A 
founder  might  appoint  a  fpecial  vifitor  for  a  particular 

{a)  Ante,  p.  197, 

purpofe  ; 


OF    CORPORATIONS.  237 

purpofe ;  and  he  might  divide  the  power  into  as  great  a 
variety  of  ftatutes,  for  particular  cafes,  as  he  pleafed :  but 
when  he  did  that,  the  court  would  collect,  from  the  whole 
coniidered  together,  whom  he  intended  to  appoint  as  ge-* 
w^rtf/vifitor. 

His  Lordfhip  then  alluded  to  the  cafe  of  Qlare  Hall  {a)^ 
and  remarked  on  the  decifion  of  the  lord  chancellor  in  fii- 
vour  of  the  general  yifitatorial  powc^,  though  there  were  no 
words  exprefsly  appointing  a  general  vtfitor. 

He  then  proceeded  to  obferve,  diat  the  founder  might 
appoint  a  general  vititor,  and  except  Ibme  particular  cafes 
out  of  his  general  jurifdi£tion  ;  or  might  in  others  prefcribe 
another  method  of  proceeding,  without  reforting  to  the 
vifitor  in  the  ftrft  inftance.— *— He  then  proceeded  to  con- 
fider  the  prefent  cafe  on  the  ftatutes  of  Queen  Elizabeth ; 
for  thofe  of  bifhop  Fiiher,  hefaid,  were  no  otherwife  ma- 
terial than  as  they  might  throw  light  oii  the  new  ones, 
which  referred  to  them  in  the  preamble ;  as  the  common 
law  or  an  dd  a£lof  parliament  might  throw  light  on  a  new 
att,  which  in  fome  refpe£ts  altered  the  former.  Where 
a  body  of  ftatutes  was  given  by  a  founder,  and  a  vifitor  ap- 
pointed, he  much  doubted,  he  faid,  whether  the  vifitor 
could  give  new  laws,  unlefs  the  founder  gave  him  an  ex- 
prefs  authority  for  that  purpofe ;  though  he  knew  there 
were  cafes  in  which  vifitors,  not  being  exprefsly  prohibited, 
had  exercifed  fuch  a  JDower  ;  he  mentioned  this,  he  faid, 
becaufe  he  obferved  a  jealoufy  in  the  foundrefs  in  the  pre- 
fent cafe,  left  the  right  of  making  ftatutes  ftiould  be  taken 
from  her  heirs,  that  is,  from  the  crown.  The  biftiop  was, 
therefore,  appointed  vifitor,  and  not  legiflator  ;  the  legif- 
lative  power  being  referved  to  the  crown,  the  heir  of  the 
foundrefs :   in  Bentley's  cafe  {b)   it  had  been  held,  that 

{a)  The  cafe  ftnmcdiately  preceding.  {b)  Ante,  p.  103. 

when 


ajS  THE   I.  AW 

when  the  fenader  iiad  given  a  complete  body  of  fiatutes, 
kis  heir,  which  io  that  cafe  was  the  crown,  could  not  alter 
them,  or  giye  new  ones  without  the  coofent  of  the  college, 
but  here  was  an  expce(^  refirvatian  of  fuch  a  power. 

The  particular  powers  granted  by  the  ftatute  '^  de 
modo  procedcndi  contra  magiftrum,"  to  the  chancellor 
and  the  heads  of  three  colleges,  and  fome  other  particular 
cafes,  feemed  only  exceptions  to  die  general  viiitatorial 
power.  The  queflion  therefore  was,  whether  all  the  reft 
of  the  vifitatorial  power,  notfo  excepted,  was  not  veiled  in 
the  biihop  of  £Iy.— This  depended  prtnicipally  on  three 
fiatutes.  That  ^^  de  eleiSione  magiftri,"  that  '*  de  am- 
biguis  interpretandis,"  and  that  ^^  de  vifitatore." 

The  iirfl:  of  thefe  referred  to  the  bifliop,  as  the  known 
viiltor  of  the  college,  and  by  words  which  would  alone 
be  fufficient  to  make  him  a  vifitor,  if  no  other  general  viil* 
tor  were  appointed  ^  and  if  the  general  power  were  in  the 
vice-chancellor,  who  was  named  in  one  Angle  inftance,  or 
in  the  crown,  becaufe  it  had  the  legiflative  power,  this 
itatute  would  be  void. 

The  fecond  ^ave  expreis  authority  to  the  biflKitp  to  de- 
termine, interpret,  and  explain  the  ftatutes.  This  was  as 
comprehenfive  an  authority  as  a  viiitor  could  haves  a 
ppwer  to  interpret  implied  a  power  to  vifit,  and  had  been 
held  in  the  cafe  of  Clare  Hall  to  conftitute  a  vifitor.  The 
words  at  the  end  of  this  ftatute,  "  vifitationem  commen- 
damns,"  were  ftrong  and  explicit  words,  to  conftitute  a 
general  vifitor. 

The  third  gave  the  bi(hop  a  power  to  vifit,  and  *'  to  do 
and  exercife,  &c.''  and  though  it  was  exprefied,  that  he 
fliould  vifit  when  requefted,  yet  that  did  not  reftrain  him 
from  vifitatorialaSs  at  any  other  times  as  in'the  cafe  of  Clare 
Hall,  though  the  vifitor  was  to  vifit  de  anno  in  annum^  and 

in 


OF    CORPORATIONS.  23^ 

in  that  of  Philips  aftd  B^ry'de  quinquennio  in  quinqtunnium', 
yet  that  did  not  refirain  him  from  hearing  complaints  at 
any  time. 

The  vifitatorial  power  was  almpft  as  ftrongly  given  to 
the  bifliop  by  the  old  ftatutes,  as  by  the  new :  the  differ- 
ence was,  that  in  the  new  ftatutcF,  the  ambiguous  clauie  in 
reftraint  of  his  power,  towards  the  end  of  the  old  ftatute 
"  de  vifitatore,"  was  omitted.  But  what  was  there  iaid 
did  not  refti^in  the  bifliop  fo  ftrongly  as  might  at  firft 
fight  appear  V-The  meaning  of  the  provifion  ieemed  to  be^ 
that  he  fbould  claim  no  right  as  a  co-founder,  ^ough  he 
was  owner  of  the  fite ;  but  only  aft  as  in  other  coUeges, 
where  he  was  not  founder.  And  in  colleges  where  he  was 
not  founder,  he  might  aft  under  powers  of  vifitation  dele^ 

gated  to  him  by  the  founder. On  the  whole  his  lord- 

ihip,  and  the  reft  of  the  court  concurred  with  him,  was  of 
opinion,  that  the  bifhop  of  Ely  was  general  vifitor  of  diis 
college,  and  as  general  vifitor  had  jurifdiftion  over  quef* 
tions  relating  to  eleftions  of  fellows  (a). 

If  on  an  application  to  the  King's  courts  for  their,  in- 
terpofition,  by  the  member  of  an  eleemofynary  foundation, 
in  a  cafe  coming  within  the  general  vifitatorial  power,  it 
appear  that  there  is  a  vifitor,  and  that  no  application 
has  been  made  to  him,  the  courts  will  not  interpofe,  be-> 
cauie  no  court  of  law  or  equity  can  anticipate  the  judg-' 
ment  of  the  vifitor,  or  take  away  his  jurifdiftion  {h). 

If  in  the  return  to  a  mandamus  direfted  to  a  college 
it  be  fet  forth,  in  general  terms,  that  fuch  a  perfon  is  vifi- 
tor, it  is  not  neceflary  to  fpecify  his  powers,  for  as  vifitor, 
he  has  power  to  determine  all  matters  that  come  as  griev- 

(tf)  Matter  and  fenior  fellows  of  St.  John's  College,  Cambridge,  v. 

Todington,  Clerk,  i  Bur.  158.    1  Bl.  71.    Rex.  v.  biftiop  of  EJy. 

(0  PerLd.Hardwicke.    sAtk.  674, 

ances 


\ 


f40  THE    LAW 

ances  before  him,  unleis  he  be  particularly  reftrained  by 
the  ftatuteS)  and  iiich  reftraint  will  not  be  prefiuned; 
neither  is  it  material  whether  the  grievance  of  which  com- 
plaint is  made,  took  pla^e  in  the  time  of  the  prefent  vifitor, 
or  in  that  of  his  predeceiTor,  and  therefore  it  is  not  ne- 
ceflary  to  fhew  that  in  the  return  (a). 

The  queftion,  whether  there  be  a  viiitor  or  not,  may  be 
fometimes  decided  on  affidavits :  but  if  a  mandamus  has 
been  granted,  commanding  the  party  to  whom  it  is  dired- 
ed  to  admit  a  perfon  to  a  fellowfhip,  on  an  affidavit  of  bis 
ele£bion,  the  court  will  not  fuperfede  the  writ  on  affidavits 
that  there  is  a  vifitor,  but  will  put  the  defendant  to  make  a 
return,  becaufe  where  the  point  is  determined  on  affida- 
vits againft  the  party  complaining,  he  has  no  opportunity 
to  do  himfelf  juftice  by  an  aflion  (h). 

When  the  exiftence  of  a  vifitor  is'  not  doubted,  it  fre- 
quently becomes  a  queftion,  whether  the  perfon  complain- 
ing, or  the  SiSt  of  which  the  complaint  is  made,  be  within 
the  vi(itor*s  jurifdidion,  and  the  determination  of  fuch 
queftions  belongs  ultimately  to  the  King's  courts,  though 
the  vifitor  may  decide  in  the  Hrft  inftance. 

It  has  been  obferved  (c)y  that  independent  members  of 
colleges  in  the  univerfities,  or  fellow  commoners,  are  mere 
boarders,  and  have  no  corporate  rights :  it  follows,  from 
hence,  that  they  are  not  fubjecSi:  to  the  jurifdidlion  of  the 
viiitor,  and  that  they  cannot  obtaio  redrefs  for  any  griev* 
ances,  by  appealing  to  him. 

John  Davison  was  admitted  a  commoner  of  Univerfity 
College  in  Oxford,  and  after  having  performed  the  greateft 
part  of  bis  public  exerifes,  and  having  kept  all  the  terms 
but  one,  requifite  for  the  purpofe  of  taking  the  degree  of 

(a)  Cafeof  AIl-Soulsj  Oxford..  Skin.  13,    2. Show.  170. 

(b)  R«xv.  Whaley,    z  Str,  1139,  (c)  Vol,  i,  p.  330. 

batchelor 


OF     CORPORATIONS.  24I 

batchelcTT  of  arts,  he  was  expelled  from  the  college.*— Uni- 
verfity  college  being  of  royal  foundation,  Mr,  Davifon 
prefcnted  his  petition  to  Lord  Chancellor  Apfley  as  vifitor. 
The  petition  ftated,  that  the  college  was  founded  by  King 
Alfred  in  the  year  872  j  that  by  charUr  it  confifted,  at  the 
time  of  the  petition,  of  a  matter,  twelve  fellows^  and 
vther  members  j  that  the  petitioner  was  admitted  according 
to  the  tenor  of  the  charter;    that  he  was  expelled  by  the 
.  tnafter  d^nAfive  fellows,  who  were  not  onp  half  of  the  fel- 
.  lows  of  the  college :    he  therefore  prayed,  that  the  matter 
might  be  taken  into  confideration ;    that  the  matter  and 
fellows  might  be  ordered  to  attend ;  and  that  the  charters, 

« 

bdoks,  and  ftatutes  might  be  produced  and  infpefbed  at 
the  hearing  of  the  petition ;  and  in  general,  that  the  ap- 
pellant might  be  redreffed. 

The  Lord  Chancellor  ordered,  that  the  parties  (houW 
attend,  and  that  the  public  books,  &c.  fliould  be  infpefted. 
On  this,  the  college  prefented^a  counter- petition,  fuggett- 
ing,  that  certain  allegations  in  the  appellant's  petition 
Virere  unfupported  by  evidence,  particularly  thefe:-^**  that 
the  college  now  confifts,  by  charter^  of  a  matter,  twelve 
fellows,  and  other  members:'*—"  that  your  petitioner  was 
admitted  a  member  purfuant  to  the  charter." — Wtiereas 
they  fhewed,  that  the  college  was  ^  corporation  by  pre* 
feriptioTiy  though  confirmed  by  feveral  royal  charters ;  that 
it  was  an  eleemofynary  corporation,  and  cdnfifted  only  of 
a  matter,  and  twelve  fellows ;  that  they  were  advifed  ani 
fubmitted,  tha£  cortimoners,  or  fuch  as  paid  for  their 
lodging  and  diet,  and  were  independent,  did  not  belong  to 
the  college^  nor  were  of  the  foundation :  that  they  were, 
of  coarfe,  not  entitled  to  the  proteftion  of  the  vifitor,  and 
could  have  no  title  to  the  production  of  the  college  papers. 
They  therefore  prayed,  that  they  might  be  heardf  againft 
Vol.  II.  R  the 


242  THE     lAW 

the  petition  of  the  appellant,  and  that  fo  much  of  the 
above  order  as  related  to  the  infpedlion  and  produ6lioh 
of  the  college  books,  &c«  might  be  fufpended  till  it  was 
determined,  ^^  whether  this  were  a  matter  of  vifitatorial 
cognizance?" 

The  lord  chancellor  accordingly  fufpended  that  part 
of  the  order.— The  mafter  afterwards  made  an  affidavit, 
that  the  college  was  merely  eleemofynary ;  that  it  had  under- 
gone various  changes,  till  at  laft,  Queen  Elizabeth,  in 
the  15th  year  of  her  reign,  incorporated  it,  "  per  nomen 
magiftri  et  fociorum  coUegii  magnae  aulae  univerfitat' 
Oxon>"  that  in  the  faid  grant  there  was  no  mention  of 
any,  commoners,  or  other  perfons  independent  of  die 
foundation,  and  that  Mr.  Davifon  never  was  a  member 
of  the  fociety,  nor  ever  belonged  to  the  fociety  in  any 
fenie. 

On  the  part  of  the  college,  it  was  argued,  that  the  vifi- 
tor's  jurifdi£Uon  was  confined  to  the  foundation,  and  was 
derived  folely  from  the  intention  of  the  founder  with  re- 
fycSk  to  thediftribution  of  his  property:  that  independent 
members  were  pupils  received  into  the  college  by  the 
mafter  and  fellows,  and  fubmitted  to  their  difcretionary 
government;  that  they  were  ftrangers  to  the  foundation, 
and  therefore  had  no  other  remedy,  in  cafe  of  particular 
grievances,  than  that  which  the  laws  of  the  land  aiForded 
them.  They  had  no  appeal  to  the  vifitor's  jurifdidion. 
The  vifitor  could  not  give  cofts,  and  young  men  of 
fortune  might  ruin,  or  at  leaft  harrafs  the  univerfity  by 
continual  vexation. 

On  the  part  of  the  appellant  it  was  infifted,  that  the 
vifitor's  jurifdi(Slion  was  not  confined  to  the  foundation, 
but  comprifed  the  whole  government  of  the  college ;  that 
the  independent  members,  tliough  ftrangers  to  the  eleemo- 
fynary 


' 


OF    CORPORATIONS.  243 

fynary  conftitution,  were  not  ftrangers  to  the  college,  be- 
ing recognized,  defcribed,  aiid  defined  in  the  contfitution 
.  of  the  univerfity ;  for  that  by  the  univerfity  ftatutes,  a 
degree  could  not  be  taken  by  a  perfon  not  a  member  of  a 
college.  That  the  fame  ftatutes  defcribed  the  duties,  pri- 
vileges, ranks,  and  habits  of  independent  members,  ac- 
cording to  their  feveral  orders.  That  thefe  defcriptions 
and  definitions  were  acknowledged  by  thofe  laws  which 
affirmed  the  conftitution  of  the  univerfity.  That  thofe  laws 
would  imply,  on  the  part  of  membe]:s  admitted  intra  mania 
adisy  fubmiffion  to  the  orders  and  ftatutes  of  the  fociety, 
and  on  the  part  of  the  college  prote£tion  and  redrefs.  — 
The  relation,  therefore,  of  thefe  independent  members  to 
the  college  being  legally  recognized,  definite  and  certain, 
they  had  an  appeal  to  the  vifitor. 

The  Lord  Chancellor,  with  the  advice  of  De  Grey, 
lord  chief  juftice  of  the  Common  Pleas,  and  Mr.  Baron 
Adams,  difmiffed  Mr.  Davifon*s  petition  (a). 

Neither,  in  a  matter  which  concerns  the  difcipline  of 
the  college,  can  an  independent  member  have  redrefs  in  a 
court  of  law. 

On  the  trial  of  an  indidment  for  an  afTauIt  on  Charles 
Crawford,  Efq'.  a  fellow  commoner  of  Queen's  College, 
in  the  univerfity  of  Cambridge,  in  turning  him  out  of  the 
garden  belonging  to  the  college,  evidence  was  offered,  on 
the  part  of  the  profecutor,  to  fliew  the  illegality  of  feveral 
fentences  x>f  expulfion  of  the  profecutor  from  the  college, 
and  of  the  confirmation  of  the  faid  fentences ;  but  of  which 
confirmation  no  notice  was  given  to  the  profecutor.— A 
fpecial  cafe  was  referved  for  the  opinion  of  the  court  of 
King's  Bench  on  the  admiffibility  of  this  evidence  ;  and 

(a)  Ex  parte  John  DavifonyEfq.  at  Lord  Apilcy's  houfe,  July  25*, 
17719  cited  CowB.  319. 

R  i  >t 


^44  T  H  E    L  A  W 

it  was  agreed  that,  if  they  ibould  be  of  opinion  that  it  was 
admiffible,  the  parties  on  both  fides  ihould  produce  to  the 
court  fuch  parts  of  the  ftatutes,  or  other  inftruments,  as 
might  be  proper  to  fupport  or  invalidate  fuch  fentences,  in 
order  that  the  court  might  judge  of  the  legality  or  illegality 
of  them. 

When  the  cafe  iirft  came  before  the  court,  and  the  coun* 
iel  for  the  proiecutor  had  begun,  Lord  Mansfield  flopped 
him,  laying,  that  on  the  cafe,  as  jthen  ftated,  nothing  ap- 
peared to  the  court  of  the  foundation  of  the  college,  or  of 
their  jurifdi£tion,  or  of  the  ftatutes,  or  of  the  fads,  all  of 
which  were  neceflary  to  be  ftated  to  enable  the  court  to 
^orm  a  judgment  on  the  queftions  referved.  Hislordfbip 
added,  that  if  the  profecutor  were  a  member  of  xJticfounda'^ 
tiofty  the  fentences  might  be  conclufive,  until  reverfed  by 
the  vifitor :  if  only  an  independent  member,  it  might  be 
defenfible  in  thofe  who  had  the  management  and  dirediou 
of  the  college  to  expel  him. 

Th£  cafe  was  afterwards  made  compleat  by  the  addition 
of  the  prder  of  rujiication  of  the  profecutor,  figned  by  the 
mailer  and  one  fellow ;  the  fentence  of  expulfion  made,  by 
the  matter  and  two  fellows,  but  figned  only  by  the  mafter ; 
the  order  of  confirmation^  figned  by  the  mafter  and  ten  fel- 
lows \  a  copy  of  the  ftatutes  of  the  college,  of  which  the 
ftatute  de  perendinantibus  was  alone  material  \  and  an  in- 
terpretation of  the  words  "major  pars  sociorum,'* 
which  occurred  frequently  in  the  ftatutes,  and  which,  by 
fuch  interpretation,  was  conftrued  to  mean  the  major  part 
of  the  fellows  rejident  in  college. 

The  ftatute  de  perendinantibus  was  as  follows  :—*'  Sta- 
tuiraus  quod  nullus  ad  perendinandum  in  hoc  CQllegi9  ad* 
mittatur,  nifi  de  expreflb  confenfu  prcfidentis,ct  majorispar-- 
tis/ociorum'y  quibus  conftetde  ipflus  bona  fama  converfatio- 

neque 


OF    C0R?Oft^TIOKS.  245 

neque  laudaBili,  et  quern  cffedideririt quiete  vi6lurum*ihter 
focios.  Et  fi  oppofitum  coiiftiterit  poft  ejus  ihgreflum,  pri- 
mo  adihoneatur  per  prefidentem  vel  ejus  vicegereritem  j  el 
fi  tunc  not!  emendatur,  moneatur  fecundb  per  duos  focios 
tunc  domi  prefentes  j  quod  fi  adh'uc'  noh  fe  refo'rniaventi 
tenio  per  prefidentem  et  majorem  partem  {bciortim  expd- 
latur  a  colleg^o  in  perpetuuhi.  Quod  fi  quis  perehdin'antium,' 
aliquod  crimen committat  unde  fcdndalunv  aut  infahiia  eidem 
coUegiooriatur,  idem  ab' hoc  collegto  expellatur." 

Ok  behalf  of  the  pirofecutor  it  was  contended;  fifff,' 
th^tthe  fentence  of  expulfion  was  examinable  in  this  court; 
and  fecondly,  tfiat  it  was  irregular,  and  confequently  ilfeil  , 
gal.— On  the  firft  point  it  was  obferVed,  that  colleges  werci 
inftituted  not  merely  for  tiie  purpofe ,  of  diftributing  this 
founder's  bountyi^  but  that,  like  aU  other  corporations^ 
they  had  for  their  object  the  public  utility }  they  might 
then  be  confidcred  in  two  different  points  of  view ;  firft, 
as .  .corporate  bodies,  and,'  fecondly,  as  eleemofynary ;  in 
each  of  which  charaftcrs  they  were  fubjeftto  a  different 
jurffdiSion;  in  matters  which  concerned^their  public,  their 
corporate  charaSer,  they  were^  likfe  every  other  corporate 
body,  fubje(^  to  the  controul  of  the  general,  law  of  the 
country;  in  matters  which  regarded  their  private,  their 
eleembfynary  char^fter,  their  proceedings  were  fubje^  ta 
the  examination  of  their  refpc^iVe  vifitdrs. 

These  inftitutions,  it  was  further  obferved,  were  in 
general  compofed,  not  only  of  members,  who  pa^iclpate(( 
of  the  endowment,  but  of  others  who  did  not.  The  iat- 
ter,' however,  were  confidei-ed  ftri(SlIy'as  niembers  of  th# 
college.  The*  terms  of  their  admiffion,  their  rank,  their 
h^biCs^  their  privileges,  their  difcipline -and  regulation,  the 
caufes  for  the'cen&re  or  e^^pulfion  of  them,  were  defined 
aj)^;pj;eicribed  by  the  ftat'utes  wlu<^h  fp'rfned  the  gene- 

R  3  ral 


246  T  H  B     LAW 

ral  conftitudon  of  the  college.  In  virtue  of  this  relation 
they  claimed  to  be  members  of  the  univerfity,  or  aggre- 
gate corporation  compofed  of  the  members  of  the  different 
colleges.  In  this  character  they  were  fubjedl  to  further 
regulations,  and,  in  return,  received  eflential  advantages : 
they  became  intitled  to  different  degrees,  diftindions,  and 
valuable  privileges  in  the  learned  profeffions,  and  to  a  qua- 
lification as  eleftors  or  reprefentatives  for  the  univerfity  in 
parliament.  If  the  fentence  by  which  Mr.  Crawford  was 
deprived  of  the  rights  incidental  to  his  chara£ter  as  a  mem- 
ber of  the  college  were  not  examinable  in  the  court  of 
King's  Bench,  he  was  without  a  remedy;  for,  as  had 
been  fettled  in  the  cafe  of  Mr.  Davifon,  the  province  of 
the  vifitor  was  confined  to  cafes  in  which  the  founder's 
property  was  concerned;  but  it  was  fufScient  that  the 
proceeding  was  without  redrefs  from  any  other  jurifdidion, 
to  render  it  amenable  to  this  court,  which  ever  interpofed 
to  prevent  a  defedl  of  jufticeto  the  fubjed.^-Tbis  court 
would,  therefore,  not  confider  themfelves  as  precluded 
from  an  examination  of  this  fentence,  and  a  declaration  that 
it  was  irregular,  if  it  fhould  be  fo  found,  which  was  all 
that  the  prefent  cafe  demanded:  for  the  queftion  was 
fimplyj  whether  the  fentence  was  a  regular  fentence  of 
expuHion?  If  it  was  not,  the  defendants  were  guilty;  if 
it  was,  they  muft  be  acquitted. 

Lord  Mansfield,  after  having  ftated  the  cafe,  proceeded 
to  obferve,  that  the  profecutor,  after  thefe  proceedings, 
continued  by  force,  and  in  defpite  of' the  college,  till  the 
faft  happened  for  which  the  indidment  was  brought :  but 
that  he  had  never  before  made  any  complaint  about  the 
proceedings,  nor  appealed  to  the  vifitor.  The  queftion 
on  thefe  fads,  he  faid,  was,  whether,  after  the  proceedings 
fo  had  againft  him,  he  had  a  right  to  continue  in  the  cq)«- 

legef 


OF     CORPORATIONS.  247 

lege  ?  It  had  been  argued  on  behalf  of  the  defendants,  that 
he  was  a  mere  boarder  ;  and  if  fo,  that  he  had  no  right  to 
continue  after  the  notice  given  him  to  leave  the  college ; 
and  the  court  all  thought  that  he  was  a  mere  boarder.— 
His  lordftiip  then  cited  the  cafe  of  Mn  Davifonatfull 
length,  and  then  proceeded*  to  obferve,  that  the  order  in 
that  cafe  was  exprefsly  founded  on  the  ground  of  the  ap* 
pellant  being  an  independent  member  and  a  mere  ftranger. 
Here  the  profecutor  was  an  independent  member, and  there- 
fore the  authority  juft  mentioned  put  an  end  to  the  quef- 
tion,  becaufe  as  a  mere  hoarder  he  had  no  right  to  continue 
in  the  college  after  they  had  given  him  notice  to  quit.    It  . 
might  be  faid,  there  was  a  difference  between  that  cafe  and 
this,  becaufe  the  ftatutes  of  Univerfity  College  took  no 
notice  at  all  of  independent  members  or  ftrangers;  whereas 
in  the  ftatutes  of  Queen's  College  there  were  exprefs  re- 
gulations con<::erning  them;  and  on  the  fuppofition  that 
Mr.  Crawford  was  fubjeft  to  thofe  regulations,  it  was  con- 
tended that  the  fentence  of  expulfion  was' illegal :  and  at 
the  trial  the  ftatutes  had  been  offered  in  evidence,  to  {hew 
that  it  ought  to  have  been  figned  by  the  mafter  and  a  ma» 
jority  of  the  fellows,  whereas  it  was  iigned  by  the  mafter 
and  one  fellow  only.    The  anfwer  to  this  was,  that  if  the 
allegation  were  well  founded,  that  Mr.  Crawford  was  a 
member,  and  fabje£t  to  the  ftatutes,  rules,  and  orders  of 
the  college,  the  merits,  the  juftice,    or  the  regularity  of 
the  expulfion  could  not  be  examined  at  the  aflizes ;  but 
the  proper  mode  of  impeaching  it  was  by  appeal  to  the 
vifit6r(<7). 

Whether  a  perfon  who  is  not  yet  aSually  a  member 
of  an  eleemdfynary  corporation,  but  who  claims  a  right  to 
becon^e  one,  be  a  proper  fubjed  of  the  vifitatorjal  jurif- 

{a)  Rex  V.  Grundon  ct  al',  Cowp.  315— jai.    • 

R  4  di£lion, 


34S  THE    LAW 

didion,  has  been  doubted.— -White,  the  founder  of  St* 
John's  College,  in  Oxford,  had  appointed  that  there  fhould 
be  a  preiideiit  and  fifty  fcholars  there,  of  whom  forty-three 
ihould  be  named  by  particular  fchools  in  Lroiidon,  and  the 
remaining  (even  by  three  cities,  of  whoniBriftol  was  tonaoie 
two :  on  a  vacancy  by  the  refignation  of  one  Balkerville, 
the  city  of  Briftol  named  one  King  tafucceed  him ;  the  col- 
lege refufed  to  admit  him,  and  chofe  another  peribn.  Ap- 
plication being  made  for  a  mandamus  commanding  the 
prefident  to  admit  King,  it  was  obje£ted  that  the  bi (hop  of 
Winchefter  was  vifitor,  and  was  to  determine  all  difputes 
concerning  the  foundation ;  to  which  it  was  anfwered, 
that  the.  perfon  in  whofe  behalf  the  application  was  made 
was  only  a  nominee,  and  not  yet  of  the  foundation,  and 
that  therefore  this  difpute.was  not  within  the  viiitor's 
jurifilidkioni  the xourt  ordered  the  ftatutes  of  the  college 
to  hfi  laid  before  them,  and  adjourned  the  queftion  (<?)•  It 
appears,  however,  by  another  report,  that  they  granted  the^ 
mandamus  to  admit  King  (h) :  but  as  this  was  a  queftion 
that  clearly  concerned  the  conftLtution  of  t4ie  college,  it  feems 
to  have  been  prpper  for  the  cognizance  of  the  vifrtor  (b). 

Ik  moft  of  the  colleges  of  the  univerfities,  new  fellow- 
Ibips  have  been  added  to  thofe  of  the  foundation  by  fubfe- 
quent  benefa6tors. — Thcfe  arc  called  ingrafted  fellowfhips ; 
and  where  the  founders  of  them  make  np  ftatutes  for  the 
regulation  of  them,  they  are  fubjeft  to  the  general  laws  of 
the  college,  and  confequently  to  the  vifitor's  jurifdidion. 

Th£  firft  cafe  we.  find  on  this  fubjefl  is  that  of  Mr. 
Jennings,  of  Clare  Hall,  which  came  before  the  court  of  - 
King's  Bench,  on  the  return  to  a  mandamus  direded  to 

(a)  Rex  ct  Reg.  v.  St.  John's  College,  Oxford,  4  Mod.  x6c. 
(^y  Comb.  238,  ' 

the 


OF    COR  PO  RAT-IONS.  24^ 

the  mafter  and-  fdlows^  ccrmmaxiding  them  to  admit  (a) 
Mr.  Jennings  to  a  fellow&ip  on  the  foundation  of  Mr*. 
Dickins.  The  return  ftated  fevcral  of  their  ftatutes,  by 
one  of  which  it  alleged  the  chancellor  was  appointed 
the  vifitor  of  the  college* —On  this  it  was  obferved,  in  be- 
half of  Mr.  Jennings,^  that  the  ftatutes  of  my  Lady  Clarej. 
which  put  the  mailer  and  fellows  founded  by  her  under  the- 
cpntroul  of  the  chancellor,  did  not  extend  to  thofe  fdloww. 
(hips  which  were  founded  afterwards  by  others;  for  which. 
rcafon,  and  as  there  was  no  other  remedy^,  a  peremptory* 
mandamus,  was  prayed.  The  point  was  not  dtetermined;, 
but  the  Chief  Jufticefaid,  f  How  cam  they  bring,  in  ftran*^ 
gers,.  and  make  them  fubjedil  to  the  reftridions  impofed  by; 
the  founder?  Though  there  be  a  vifitor  for  the  fellows, 
founded  by  my  Lady  Qare^  yet  the  queftion  is,  whether. 
this  viiltor  fliall  be  extended  to  the  new  fellows?  Whether 
th^re  muft  not  be  a,  n^W  incorporation  of  thefecoodfeU 
lowlhip  founded  by  Dickins  ?*'  (b) 

In  the  year  1740,  a  cafe-  from  Univerfity  College,*  in, 
Oxford,  came  before  Lord  Chancellor  Har4wicke,  asge-^. 
ner<il  vifitor  of  the  college  in  right  of  the  King :  it  ap--^ 
Pl^ared  that  the  college  was  founded  by  King  Alfired>  and. 
th^t  William  of  Durham  had  afterwards  founded  twofeU 
lowfljips,   **  de  proximis  Dunelmiae  partibusj"  but  had> 
giv^n  no  ftatutes.   Thefe  ingrafted  fellowibips  were  there-, 
fore  confideredas  fubjeiSl.to  the  general  vifitor  of  the  oldn 
foundation.    In  that  capacity  I^ord  Hardwicke  took  cog^- 
n|;(ance  of  the  complaint,  determined  it  in  a  fummary  - 
way  againft  the  college,  and  would  not  permit  it  to  pro* 
c?ed  in  the  couxiq  of  charity  caufes  (r). 

(a)  The  report  fays  ''Toftm^e,"*  but  as  it  appears^  by  the  fubfciftiieiit 
part  of  the  caiib,  that  the  dispute  was  about  the  vaUdity  of  th«:^ciftiM% 
itwa^  pi(0bably  a  maudanau^s  to.**  adipit.*^ 

(b)  Mr.  Jennings's  cafe,  of  Clare  Hall,  5  Mod.  41  j. 
(0  3  Atkf  667.    I  Bur.  103. 

John 


250  THE     LAW 

John  Freeman,  of  Billing,  in  the  county  of  Northamp- 
ton, by  his  will  in  1615,  direded  2000L  tobe  laid  out  by  B 
his  executors  in  purchaiing  lands  of  inheritance  of  the 
yearly  value  of  lOoL  the  rents  to  be  applied  to  the  main- 
tenance of  two  poor  fellows  and  eight  poor  fcholars  of  his 
foundation,  in  the  houfe  or  college  called  Clare  Hall,  in 
die  univerfity  of  Cambridge,  for  ever,  in  the  proportion 
of  2^\.  a  year  to  each  of  the  fellows,  and  5I.  to  each  of 
the  fcholars:  he  directed  that  his  kinfmen,  if  there  fliouU 
be  any  of  that  defcription,  ihould  be  firft  preferred ;  next 
to  them  thofe  who  were  born  within  the  county  of  North- 
ampton, and  next  to  them  thofe  who  were  born  within  the 
county  of  Lincoln. — The  executors,  in  purfuance  of  the 
will,  laid  out  2000I.  in  purchafing  lands  of  inheritance  of 
the  yearly  value  of  lool.  and  upwards,  and  the  matter  and 
fellows  having  accepted  the  donation  on  the  terms  and 
conditions  on  which  it  was  given  by  the  teftator,  the  exe- 
cutors executed  a  deed  in  1622,  to  which  they  were  parties 
of  the  one  part,  and  the  mafter  and  fellows  of  Clare  Hall 
of  the  other,  by  which  the  purchafed  lands  were  limited 
and  fettled  for  the  perpetual  eftabliihment  and  endowment 
of  two  fellowfhips  and  eight  fcholarfhips,  on  the  foundation 
of  John  Freeman,    the  teftator. — From  the  year   1622 
to  1726,    the  matters  and  fellows  of  Clare  Hall  purfued 
the  intention  of  the  founder,  without  deviating  in  one 
fingleinttance.— Thefirtt  fellow  chofen  into  the  college 
contrary  to  the  will  was  in  1726,  and  the  fame  innovation 
continued  in  every  fubfcquent  eleAion  for  the  next  twenty 
years.— Thomas  Neal,  a  fellow  on  Mr.  Freeman's  foun- 
dation, in  1743  refignedWs  fellowfhip,  on  which  Robert 
Mapletoft,  a  batchelor  of  arts,  and  born  at  Byeiield,  in 
Northamptonlhhre,  offered  himfelf  a  candidate;  and  though 
there  was  no  other  candidate  of  the  founder's  kindred,  nox: 

any 


OF    CORPORATIONS.  25  I 

any  pcrfon  born  in  Northamptonfliirc  or  Lincolnlhire,  yet 
the  maftcr  and  fellows  elefted  William  Talbot,  a  perfon 
not  related  to  the  founder,  and  born  in  the  county  of 
Bedford. 

Mapletoft  filed  an  information  in  Chancery  in  the 
name  of  the  attorney  general,  in  which  he  ftated  thcfe 
fefts,  and  infifted  that  the  election  of  Talbot,  being  made 
in  dire6l  contradiction  to  the  exprefs  terms  of  the  donation, 
was  void  ;  and  that  the  relator  being  the  only  competitor 
duly  qualified  according  to  the  intent  of  th«  founder,  and 
no  objeftion  of  unfitnefs  having  been  imputed  to  him, 
ought  to  have  been  cledled  into  the  vacant  fellowfhip,  not 
merely  in  preference  to  Tafbot,  but  in  exclufionof  him.<— 
He  therefore  prayed  "  that  the  propriety  of  the  faid  foun- 
dation of  two  fellowfliips  and  eight  fcholarfliips  might  be 
aflerted  and  eftablifhed  by  a  decree  of  the  court,  and 
that  the  fellowihips  and  fcholarfhips  might,  according 
to  the  true  intent  and  meaning  of  the  founder,  be  de- 
clared to  have  been  abfolutely  appropriated  to,  and  belong 
in  the  firft  place  to  the  teftator's  kinfmen,  if  any  there 
were ;  and,  next  to  them,  to  thofe  that  were  born  within 
the  county  of  Northampton ;  and,  next  to  them,  to  thofe 
that  were  born  within  the  county  of  Lincoln,  and  ihould 
be  fit  for  the  fame ;  and  that  the  eleftion  of  the  defendant, 
William  Talbot,  into  the  fellowfhip  vacant  by  the  re- 
fignation  of  Thomas  Neal  might  be  fuperfeded,  and  the 
relator  forthwith  admitted  to  and  inflated  in  the  fame.  — " 

The  defendant,  William  Talbot,  as  to  fo  much  of  the 
information  as  fought  relief  in  all  the  feveral  matters 
therein  mentioned,  pleaded  that  Edward  the  third,  in  the 
twentieth  year  of  his  reign,  by  letters  patent  under  the 
great  feal,  granted  licence  to  Elizabeth  de  Burgo,  then 
Lady  Clare,  to  found  and  endow  the  college  or  hall  called 

Clare 


^52  T  H  B     LAW 

Clare  Hall,  in  the  univerCty  of  Cambridge,  for  the  perpe- 
tual maintenance  and  fubfiftence  of  a  mafter,  divers  feU 
lows,  and  (cholars  in  the  (aid  college  or  hall,  who  fhould 
apply  themfclvcs  to  the  ftudy  of  learning.— He  then  ftated 
the  foundation  of  the  college  iq  purfuance  of  the  licence, 
and  the  ftatutes  of  Lady  Qare,  before^  ftated  (a). — He 
tjien  averred,  that  the  (aid  ftatutes  were  all  that,  in  any 
refpe^  related  to  the  conftitution  of  a  vifitor  of  Clare 
Hall,  and  that  there  was  no  deed  or  writing,  other  than 
thcfe,  which  any  way  related  to  that  fubjeft ;  and  infifted 
that  the  chancellors,  for  the  time  being,  of  the  faid  univer- 
iity  had  been  ever  fince  the  viiitors  of  the  faid  hall ;  and 
that  the  chancellor  for  the  time  being,  his  deputy  or  vice- 
chancellor,  had,  with  the  advice  and  confent  of  two  dolors, 
if  any  fuch  there  were,  or  otherwife  of  two  mafters  of 
arts,  one  a  rcgeijt  the  other  a  non-regent  mafter,  heard, 
adjudged,  and  determined,  and  of  right  ought  to  hear,  ad- 
judge, and  determine  all  difputes,  complaints,  and  contro* 
verfies  concerning  the  elediion  and  admiffion  of  any  per- 
fon  into  the  .place  of  one  of  the  fellows  or  fcholars  of  the 
faid  college,  and  that  fuch  controverfies  bad  not  been,  and 
of  right  ought  not  to  be  heard,  adjudged,  or  determined  be- 
fore  any  other  court  or  judicature,  or  in  any  other  man- 
ner Whatlbever,— He  further  alleged,  that  at  the  time  of 
the  eleSion  of  the  defendant,  the  Duke  of  Sonreriet  was^, 
and  ftill  continued  to  be  the  chancellor  and  vifitor  of  Clare' 
Hall;  and  that  the  relator,  Robert  Mapletoft,  had  not  ap« 
pealed  to  the  faid  chanceHor  as  vifitor  of  the  faid  college 
or  hall,  to  hear  and  determine  the  right  of  election,  as  he* 
might  and  ought  to  have  done;-* He  then  prayed  the  judg-t 
ment  of  the  court,  whether  he  ought  to  be  compelled  to 


.  (a)  Vid^  aftte>  page  427*  i 

make 


OF    CORPORATIONS.  2^ J 

make  any  odier  anfwer,  or  whether  the  court  ought  to 

proceed  any  further  in  the  fuit. 

After  argument  at  the  bar,  the  Lord  Chancellor  fiud, 
he  had  received  fatisfa£lion  enough  at  prefent  to  detemline 
this  plea,  but  not  to  make  a  final  determinatipn,  for  that 
the  relator  was  not  precluded  from  entering  into  proof  to 
falfify  the  plea. — It  was,  he  faid,  a  cafe  of  great  confe-. 
quence  to  the  colleges  in  the  univerfities,  who  had  had 
many  litigations  about  the  powers  and  rights  of  vifitors, 
and  how  far  the  courts  of  juftice  had  a  jurifdi£tion  in  mat- 
ters of  that  kind ;  and  if  it  Ihould  be  haftlly  determined 
that  colleges  were  liable  to  informations  in  this  court,  on 
the  footing  of  general  charities,  and  accountable  for  ni[if- 
applications  and  abufes,  he  was  afraid  a  door  would  be 
-opened  to  great  vexation  and  expence.— There  were  two 
queftions  which  occurred  in  this  cafe ;  firft,  whether  by 
by  the  plea  it  was  fufficiently  (hewn  that  there  was  a  gene- 
ral vifitor  of  this  college  ?  The  fecond,  whether  that  vifi- 
tatorial  power  extended  to  Mr.  Freeman's  foi^ndation  ? 
As  to  the  firft,  he  was  of  opinion  that  there  was  a  general 
rifitor,  and  expreffed  himfelf  to  the  efFecl  explained  in  a 
former  page  {a).    As  to  the  fecond,  taking  it  as  eftablifhed 
that  there  was  a  general  vifitor  of  the  college,  he  thought 
his  power  extended  to  Mr.  Freeman's  foundation.    Mr. 
Freeman  had  dire£led  2oool.  to  be  laid«  out  in  lands,  the 
rents  ^nd  profits  of  which  were  to  be  applied  towards  the 
maintenance  of  ten  poor  (cholars  in  Clare  Hall,  namely, 
to   two  poor  fellows,  there  to  be  placed^  25I.  each,  &c.— 
What  was  Clare  Hall  ?  A  corporation  confifting  of  mafttrs 
and  fellows  ;  and  the  .po^!er;giv,en,by  the  charter,  was  to 
incorporate  by  this  name  indefinitely,  not  njentioning  any 
number  of  fellows.     It  had  been  objedled,  that  nothing 

{a)  Vid..&nte»  pag«  2iS>  129. 

appeared 


^54  THE     LAW 

appeared  which  imported  that  thefe  new  fellowfliips  (hould 
be  incorporated  with  the  old;  biit  his  lordfliip  was  of 
opinion,  from  the  words  ^^  there  to  be  placed^**  that  it  was 
die  intention  of  Mr.  Freeman  that  they  (hould  be  incorpo- 
rated, though  unqueftionably  the  rules  laid  down  by  him 
as  founder,  with  refpe£t  to  the  fitnefs  of  the  perfons,  ought 
to  be  obferved.  What  then  was  the  confequence  of  this 
ingraftment?  It  had  been  faid  that  thefe  fellows  were  not 
fubjeft  to  the  fame  rules,  nor  to  be  governed  by  the  fame 
viiitor  with  thofe  of  Lady  Clare's  foundation.  As  there 
were  in  colleges  fo  many  ingrafted  charities,  this  became  a 
queftion  of  confiderable  importance  :  it  had  been  obje<Sled, 
that  the  ftatutes  could  only  extend  to  the  corporation  of 
Edward  the  third ;  that  the  corporation  could  not  extend 
itfelf ;  and  that  Mr.  Freeman  had  not,  by  his  donation, 
made  his  fellows  members  of  it.  If  Edward  the  third,  he 
(aid,  had  made  his  corporation  to  confift  of  twelve  fellows, 
a  certain  number  being  then  limited,  thefe  new  fellows 
could  not  have  come  in  without  a  new  incorporation  \  but 
here,  the  number  being  indefinite,  he  faw  no  rule  of  law 
to  prevent  the  mafter  and  fellows  of  Clare  Hall  from  in- 
corporating thefe  fellows.  A  lay  corporation,  where  the 
number  was  indefinite,  might  incorporate  new  members, 
if  they  did  not  make  an  ill  ufe  of  fuch  power :  if  they 
might  be  ingrafted  into  this  college,  then  they  were  mem- 
bers, and  muft  be  governed  by  the  flatutes  of  the  college, 
and  the  rules  of  its  difcipline  ;  as  a  confequence  of  which 
they  were  fubjeft  likewife  to  the  vifitatorial  power  of  the 
vifltor  of  the  college ;  and  if  they  were  fubjeft  to  it  with  re- 
gard to  amotion,  they  were  equally  liable  with  regard  to 
eledHon.  It  had  been  (aid,  however,  that  the  vifitor  could 
not  have  a  right  to  determine  as  to  the  agreement  or  con- 
tradk  made  between  the  matters  and  fellows  and  Mr.  Free- 


man's 


OF    COR^POR  ATION  S.  2^5 

man's  executors :  but  the  agreement  of  the  matters  and 
fellows,  he  faid,  to  receive  two  new  fellows,  was  an  aS 
into  which  the  vifitor  had  a  right  to  examine,  and  im- 
plicitly gave  him  a  power  over  them ;  h^  might  have  en- 
quired into  it  within  the  year,  as  it  was  a  tranfa£tion  in 
that  college,  the  whole  of  which  was  fuhjeft  to  his  jurif- 
didUon. 

A  VISITOR,  he  continued,  was  a  much  more  proper 
judge  of  the  comparative  fitnefs  and  qualification  of  can- 
didates than  a  court  of  law  or  equity,  as  they  were  more 
converfant  in  matters  of  that  kind.  But  he  was  further 
of  opinion,  that  the  relator  had  excluded  him(elf  from 
entering  into  this  queftion,  by  exprefsly  praying  to  be  ad- 
mitted a  fellow  of  this  college ;  and  he  mutt  confider  every 
fellow  of  the  college  as  a  part  of  the  college  :  for  there 
was  no  averment  that  thefe  new  fellows  were  not  a  part 
of  the  corporation,  or  that  they  might  not  be  matters  of 
^  the  college,  or  enjoy  any  other  office  under  the  original 
foundation.-— He  was  likewife  of  opinion  that,  as  the  cha- 
rity was  already  ettablifhed,  an  information  in  this  court 
was  improper,  and  that,  if  the  vifitor  had  not  jurifdiftion, 
the  application  fhould  have  been  to  the  court  of  King's 
B^ch  for  a  mandamus  to  determine  the  right  between 
the  parties  {a). 

Between  the  time  when  the  ftatutes  of  bifliop  Fifher 
were  given  to  Saint  John's  College,  Cambridge,  and  the 
promulgation  of  the  ftatutes  of  Queen  Elizabeth  to  the 
fame  college  {b\  John  Keton,  do£tor  of  divinity,  and 
canon  of  the  cathedral  church  of  Sailiibury,  founded  two 
fellowlhips  and  two  fcholarfhips  there.— This  foundation 
was  by  indenture  dated  the  27th  of  Oftober,  in  the  22d 

-   .      * 

(a)  Attorney  Gen.  v.  Talbot.    3  Atk.  65x.    x  Vcf.  78. 
ijf)  Vid.  fup.  p.  2X9)  a33. 

year 


156  t-HE    tAW 

year  of  Henry  the  eighth,  and  made  betwcfcn  Sir  Anthbny 
Fitzherbert,  knight,  then  one  of  the  juftices  of  the  Com- 
mon Pleas,  and  Dr.  Kcton  of  the  firft  part,  the  chapter  of 
Southwell,  in  the  county  of  Nottingham,  of  the  fecond 
part,  and  Saint  John's  College  of  the  third  part,  by  i^hich 
It  was  agreed,  that  Dr.  Keton  fhould  have  two  fellows  and 
two  fcholars  fuftained  at  the  cofts  of  the  college  for  ever, 
of  his  foUndadon,  over  and  above  the  number  of  fellows 
and  fdiolars  then  eftablifeed  there,  with  the  fame  emolu* 
ment  and  advantages  as  other  fellows  and  fchdlars  of  the 
college,  and  an  additional  ftipend  of  13s.  4d.   per  an- 
num to  each  of  the  faid  two  fellows:    that  Sir  Anthony 
Fitzherbert  and    Dr.  Keton,   or  the  furvivor  of  them, 
fhould  have  the  nomination  of  the  faitd  fellows  and  fcholars, 
durfng  their  refpedHve  lives,  and  after  their  deceafe  the 
college  fhould  h^ve  the  ele<Stion,  according  to  fuph  direc- 
tions as  the  faid  Dr.  Keton,  by  his  will  or  otherwife, 
fhould  give :    provided  that  the  faid  fellows  and  fcholars 
fhould  be  eleded  out  of  fuch  perfons  as  were  or  had  been 
chorifters  of  the  chapter  of  Southwell,  if  any  fit  perfon 
could  be  found  in  Southwell ;  but  if  no  fit  perfon  could  be 
found  there,  then  out  of  fuch  perfons  as  had  been  chorifters 
in  Southwell,  and  were  refident  in  the  univerfity  df  Cam- 
bridge at  the  time  of  the  eledtion  ;  and  in  default  of  fuch, 
then  out  of  the  moft  Angular  in  manners  and  learning,  of 
what  country  foever,  then  refident  in  Cambridge :  that  the 
mafter,  fellows,  and  fcholars  of  the  old  found^ition,  as  well 
as^^the  fellows  and  fcholars  of  Dr.  Keton's  foundation, 
fhould  take  an  oath  to-  obferve  Df .  Ketones  ftafutes,  pro- 
vided thefeihould  be  agreeable  to  the  ftatutes  gi  vert  by  the 
foundrefs  of  the  college :  in  confideration  of  all  which,  Dr. 

Keton  had  given  to  the  college  400I. ^And  it  was  further 

agreed,  that  if  the  college  fhould  fail  in  taking,  admitting, 

receiving, 


OF    CORPORATIONS.  257 

receiving)  or  maintaining  the  faid  fellows  and  fcholars,  ac« 
eording  to  the  faid  ordinances  and  agreement,  they  fhould 
forfeit'to  Sir  Anthony  Fitzherbert  and  Dr.  Keton,  arid  to 
the  chapter  of  Southwell,  and  to  their  heirs  and  fucceflbrs, 
in  the  name  of  a  penalty,  zos.  for  every  month  that  the  faid 
fellows,  &c.  fliould  be  excluded  or  reftrained,  &c.  for 
which  they  fliould  be  'at  liberty  to  diftrain  in.  certain 
manors  belonging  to  the  college. 

Dr.  Keton  made  no  other  regulation  than  what  was 
contained  in  the  indenture. 

It  having  been  decided  (<?),  that  the  bifliop  of  Ely  was 
general  vifitor  of  the  college,  and  confequently,  that  he  had 
jurifdidlion  over  the  election  to  fellowfliips  of  the  ^/^/ foun- 
dation, it  became  a  queftion,  in  the  30th  of  Geo.  II. 
whether  his  vifitatorial  power  extended  to  thofe  of  Dr. 
Keton's  foundation;  and  if  it  would  have  done  fo,  had 
there  been  no  claufe  of  dif^efs  in  the  deed  of  annexation, 
whether  the  inferti'on  of  that  claufe  excluded  it. 

That  the  bifliop  was  vifitor,  as  to  Dr.  Keton's 
fellowfliips,  as  well  as  to  thofe  of  the  old  foundation,  v/as 
argued  on  thefe  grounds ;  that  the  original  foundation  of 
the  college  was  on  the  exprcfs  condition,  that  the  bifliop 
of  Ely  fliould  be  vifitor ;  "  that  Dr.  Keton  was,  in  efFeft, 
only  2LfurchaJer  of  two  fellowfliips,  and  two  fcholarfliips, 
which,  therefore,  were  to  be  confidered  as  incorporated 
with  the  original  foundation ;  that  Queen  Elizabeth's  fli- 
tutes  were  fubfequent  to  this  incorporation  5  that  thefe 
two  fellowfliips  and  two  fcholarfliips  wer£,  therefore,  part 
of  the  college,  when  the  vifitation  of  it  was  recommended 
to  the  bifliops  of  Ely  for  the  time  being  j  that  thefe .  fub- 
fequent ftatutes  conftantly  fpolce  of  the  bifliops'  of  Ely  as 
gmeral  vifitors  of  the  college  ar  that  time,  and  not  as  being 

(^)  Ante,  p.  239. 
VoL.'IL  S'  conftituted 


358  THE    LAW 

conftitutcd  fo,  by  thofe  ftatUtcs  themrdvcs  5  that  the  ^r- 
ginal  znd  annexed  foundztiottj  as  to  the  biihop's  general 
vifitatorial  authority,  were  within  the  fame  reafon ;  the  in* 
grafted  fellows  were  bound  by  the  ftatutes  in  being  at  the 
time  of  the  ingraftment,  and  even  fwrore  to  the  obfervance 
of  them ;  that,  in  the  prefent  cafe,  no  new  ftatutes  were 
given  by  the  founder  of  the  annexed  felfowfhips ;  that  the 
power  he  referved  was  only  to  give  the  additional  ftatutes 
conformable  to  the  old,  and  the  indenture  referred  through- 
out to  the  original  foundation. 

As  to  the  fecond  point,  it  was  argued,  that  the  deed  giv- 
ing another  remedy  by  diftrefs,  did  not  exclude  the  vifitor : 
the  diftrefs  was  given  to  the  church  of  Southwell,  and  not 
to  the  p^rfon  injured  in  point  of  election  and  admiffi^m : 
but,  if  it  had  been  given  to  the  party  injured,  that  could 
hot  have  taken  away  his  right  of  appeal  to  the  vifitor  for 
relief:  the  one  was  in  order  to  obtain  election  and  admlf- 
fion,  the  other  for  the  profits :  the  fpecific  relief  muft  come 
from  the  vifitor ;  the  diftrefs  would  be  only  for  the  delay. 
Thefe  new  fellowfhips  were,  by  the  deed,  to  have  all  the 
rights  <>£  other  fellows  :  one  of  thefe  was  a  right  of  appeal. 
The  nomine  pana  and  the  claufe  of  diftrefs,  given  to  the 
church  of  Southwell,  could  not  talce  away  the  diftind  rights 
of  the  candidate  and  of  the  bifhop  :  they  had  a  right  to  the 
remedy^  but  not  to  the  penalty  5  that  belonged  to  the  church 
of  Sotithwcll:  but  had  the  penalty  been  given  to  the  can- 
didate, that  could  not  have  difcharged  the  obligation  of  the 
college  to  perform^their  contract ;  and  the  reftriiftion,  from 
going  yir^j  [a)^  did  not  exclude  the  vifitOr,  for  he  was  do- 
meftic ;  it  only  excluded/^r<?n//^  jurifdidlions,  courts  of  law. 

In  fupport  of  this  reafoning  was  cited  a  cafe  which  had 
occurred  in  this  very  college,  in  the  year  I7»6,  and  in  which 

{ck)  Vid.  ante,  p.  136. 

the 


OF    CORPORATIONS,  2^9 

the  .college  had  fubinitted  to  ^he  yifitor's  jurifliaion. 
That  cafe  fpfembled  exactly  the  prefent :  it  arofe  on  the 
foundation  of  Dr.  Beresford,  which  wa§  alfp  by  deed  and 
with  a  claufe  of  diftrefs.  His  foundation  was  like  wife  of 
two  fellowfhips  and  two  fcholarihips  in  this  college,  by 
indenture  tripartite,  ijiade  the  12th  of  February,  in  the 
II  H.  8,  between  the  college,  the  dean  and  chapter  of 
Richfield,  and  himfelf,  in  confideration  of  400I.  givenby 
him  to  the  college :  in  which  indenture  a  forfeiture  was 
fixed  ;  ^nd  a  right  of  entry  into  the  college  lands  jgivep  to 
the  dean  and  chapter  of  Lichfield  to  diftrain  for  it,  -  Mr. 
Pqgg  was  ejefted :  Mr.  Burton  appealed  to  the  bifhop  of 
Ely  as  yifitor :  Mr.  Pegg  protefted  againft  his  jurifdiflion. 
Civilians  and  common  lawyers  \yere  heard  pn  the  queftion 
of  the  jurifdi£tioni  the  vifitp;- pronounced  for  his  own  ju- 
rifdiftion,  and  after\yards  gave  fentence  for  Mr,  Burton, 
the  appellant ;  and  iffued  his  monition  to  the  mafter,  pre- 

fident,  and  fix  fenior  fellows  to  adjnit  him.     The  monition 

.'        .     .  .  .  ••  >  >  .    . 

was  obeyed ;   and  Mr.  Burton  admitted  into  the  fellow- 
fhip,  by  the  prefident  3    and  by  ,the  latter  a  certificate  of 
the  adn\iffion  duly  returned  to  the  vifitor, 
'  In  oppofition  to  the  yifitor's  jurifdi£lion,  it  was  argued, 
that  he  could  not  be  vifitor  as  to  the  fcllowfliips  of  the 
new  foundation,  unlefs  fpecially  appointed  by  the  founder ; 
which  was  not  the  cafe  herej  that  Queen  Elis^abeth,  who 
was  fubfequent  to  Dr.  Keton,  could  not  make  regulations 
for  his  fellowfhips  ;   which  were  not  of  the  foundation  of 
the  countefs  of  Richmond,  under  whom  Queen  Elizabeth 
claimed:  that  Dr.  Keton  might  fubj eft  his  fellows  to  the 
then  fubfifting  rules   of  government  of  the  college,  but 
could  not  part  with  the  right  of  vifitation  inherent  in  him- 
felf and  his  heirs,  without  plain  and  explicit  words, 

S  2  With 


t6o  THE     LAW 

•s. 

With  refpcft  to  the  claufe  of  diftrcfs,  it  was  faid,  there 
was  a  difference  between  fuperadding  new  fellowihips  to 
an  old  foundation,  which  was  merely  matter  of  donation, 
and  thus  pur  chafing  two  fellowfhips,  which  was  a  matter  of 
contra£l :  this  remedy,  it  was  argued,  was  not  inadequate 
at  the  time  when  it  was  given;  13I.  per  annum  being  a 
large  fum,  in  the  22  H.  8,  and  more  than  equal  to  ttie 
fellowihips :  but  had  it  been  inadequate,  the  founder  had 
thought  fit  to  accept  it  and  require  no  more.  This  com- 
mon law  remedy  was  as  effeftual  as  any  vifitatorial  power, 
and  therefore  would  fuperfede  it}  for  that  was  only  founded 
on  neceflity,  becaufe  no  better  could  be  had.  But  here 
the  party  injured  might,  on  (hewing  his  right  in  a  court 
of  equity,  compel  the  church  of  Southwell  to  diftrain; 
which  woulrf  bring  the  right  to  be  determined  on  an  ifllie 
at  law ;  and  this  being  once  determined  for  the  candidate, 
the  court  of  King's  Bench  would  afterwards  grant  a  man- 
damus to  admit  him.  ,  But  if  the  bilhop  had  a  concurrent 
authority,  he  might  judge  one  way,  and  the  church  of 
Southwell  another ;  the  jurifdidtions  might  clafli,  and  the 
college  be  ruined  between  them.  With  refpeft  to  Mr. 
Pegg's  cafe,  it  was  obferved,  that  the  proceedings  took 
j^lace  in  the  vacation,  when  no  recourfe  could  be  had  to  the 
courts  of  law. 

Lord  Mansfield  delivered  the  opinion  of  the  court  to 
this  efFedl  irn-that  this  was  a  queftion  in  which  the  intereft 
of  all  the  colleges,  in  both  univerfities,  was  intimately  con- 
cerned^ It  was  impofiible  to  fpr^fee  the  tenth  part  of  the 
mifchiefs  which  would  arife  if  they  fhould  fucceed  in  this 
point.  There  was  no  college  that^  was  not  involved  in  the 
queftion  \  were  it  decided  in  their  favour,  it  would  fubjedl 
hne  of  them  totally  to  the  King's  courts. — There  were 

in 


OF    CORPORATIONS.  261 

in  this  college,  thirty-two  original  fellowfhips^  and  twenty- 
fe  vcn  on  annexed  foundations.  He  had  been  defirous  to  know, 
whether  the  form  of  ingrafting  fellowfliips  before  the  reign 
of  .Queen  Elizabeth,  was  not  ufually  by  indenture,  with  a 
claufe  of  difirefs,  as  in  the  prefent  cafe.  He  had  fijfpefted, 
it  took  its  rife  from  an  analogy  to  tenure  by  divine  fervice, 
which  diffi|ped  from  frankalmoign  in  this,  that  it  was  cer- 
tain, and  that,  if  not  performed,  the  donor  or  his  heirs  had, 
by  common  law,  a  right  to  diftrain  for  it,  whereas  in 
frankalmoign  he  had  no  remedy,  but  to  complain  to  the 
ordinary. — He  had,  therefore,  enquired  into  moft  of  the 
old  foundations  in  both  univerfities,  and  found  there  were 

.  few  without  fome  ingraftments,  and  thofe' generally  made 
by  indenture,  with  a  claufe  of  diftrefs.  All  ingrafted  fel- 
lowftips  were  on  the  fame  footing  as  the  old  ones,  unlefs 
they  were  received  on  particular  terms,  by  a  fpecial  form  of 
foundation,  and  a  fpegial  manner  of  acceptance  5  and  unlefe 
the  new  founder  had  ordained  the  contrary,  the  old  vilitor, 
as  fuch,  vifited  all  annexed  foundations.  The  mode  of 
donation  was,  in  all  cafes,  the  law  of  it.  If  Dr.  Keton 
had  appointed  another  vifitor,  and  the  college  had  accepti^ 
his  donation  on  thefe  terms,  his  vifitor  would  have  had  ju- 
rifdidlion.  But  he  had  direcSed  that  his  fellows  fhould  be 
fellows  of  St.  John's  College,  though  of  his  foundation ; 
he  contracted,  that  they  fliould  have  the  fame  privileges 
and  rights  as  other  fellows ;  and  they  were,  to  all  purpofes, 
on  the  fame  footing  with  the  reft,  except  in  their  proprie- 
tary rights.  They  were  to  be  eledled  as  other  fellows, 
for  there  was  no  provifion  made  as  to  the  manner  t>f  voting 

.  for  them:  that  was  referred  to  the  conftitution  of  the  col- 
lege, as  were  alfo  their  age,  learning,  morals.  If  the  col- 
lege judged  wrong,  in  thefe  points,  the  vifitor  might  re- 
view and  reyerfe  the  determination.     Dr.  Keton's  fellows 

S3  were^ 


262  ^  THE     LAW 

were  moreover  fvvorn  tb  obferve  the  Ratutes  of  the  college, 
in  other  words,  the  ftatutes  of  the  original  fouhdation;  for 
Dr.  Keton  had  made  none  himfelf,  nor  could  Le  have  made 
any,  inconfiftent  with  thofe  of  ^he  foundrefs.  Had  he  by 
\C\%Jcle  authority  appointed  a  frelh  vifitor,  that  would  have 
been  inconfiflcnt  with  the  ftatutes  of  the  original  foun- 
dation. But  he  had  gone  farther ;  and  by  Mblaiming  a 
power  of  making  iiich  inconfiftent  ftatutes,  had  fhewn  his 
intention,  that  his  fellows  fliould  be  under  the  fame  regu- 
lation and  government,  as  the  reft  of  the  foclety :  and  the 
general  vifitor  might  proceed  againft  either  of  them,  as 

againft  the  other  fellows,  even  to  expulfon. But  had 

there  been  nothing  more  in  thd  deed  than  the  naming  of 
them  fellows,  they  would,  in  that  chara£ler,  have  become 
members  of  the  corporate  body,  and  fubjeS  to  all  the  dif- 
cipline  and  rules  of  the  college,  as  had  been  obferved  in  the 
cafe  of  the  attorney  general  and  Talbot  {ja). 

As  to  the  fpecial  remedy  by  diftrefs,  and  proceeding  on 
it  in  the  King's  courts,  this  would  have  very  extenfive 
confequences,  and  affcft  many  cafes  befide  the  prefent,  as 
feveral  b6nefa6lors  had  followed  the  fteps  of  Dr.  Keton,  by 
inferting  the  fame  claufe.  The  remedy  was,  however, 
inadequate  in  point  of  value,  and  it  was  not  given  to  the 
party  injured  i  but  to  Dr.  Ketones  heirs  and  the  chapter 
of  Southwell.  This  remedy,  and  that  by  appeal,  were  re- 
medies for  different  purpofes  :  the  appeal  was  a  fpecific 
remedy  to  be  applied  by  the  vifitor  of  the^  college ;  the 
diftrefs,  as  in  the  tenure  by  divine  fervjce,  was  left  to  the 
common  law ;  and  there  were  many  inftances,  befide  thefc, 
where  the  remedy  by  diftrefs  did  not  take  away  the  fpecific 
remedy.  On  the  whole  he  concluded,  with  the  con- 

(/?)  Ante,  p.  253,  4,  5. 

currcnce 


r 


OF     CORPORATIONS.  26? 

currency  of  the  court,  that  the  vifitor  was  npt  excluded  by 
the  4nfcrtion  of  this  claufe  (a), 

The  jurifditftion  of  the  vifitor  doies  not  extend  to  a  dif- 
pute  bet \yeen  the  college  and  a  ftranger.  Thus  if  the  col- 
lege agree  with  a  ftranger  to  grant  him  a  leafe  of  the  col- 
lege lands,  and  refufe  to  perforin  the  agreement,  the  re- 
me4Y  is  by  a  bill  in  a  court  of  equity  for  a  (pecific  per- 
formance^ and  not  by  appeal  to  the  vifitor  (^). 

So,  where  an  eftate  is .  given  to  the  college,  as  truftees, 
the  vifitor  cannot  take  cognizance  of  the  execution  of  the 
truft. 

Dr.'  John  Bowton,  a  fellow  of  Saint  John's  college  in 
Cambridge,  by  will,  in  1689,  devifed  to  the  mafter,  fellows, 
and  fcholars  of  the  college,  and  their  fucceflbrs,  the  per- 
petual advowfon  of  a  reilory  on  truft,  that  whenever  the 
church  fhould  be  void,  and  his  nephe.w  ^ould.  be  capable 
of  being  prefented  to  it,  they  (hould  prefent  him ;  and  on 
the  next  avoidance  ihould  prefent  one  of  his  name  and 
kindred,  if  there  fhould  be  any  one  of  that  defcriptioa 
capable'in  the  college ;   if  none  of  that  defcription,  the  fe- 
^  nior  divine  then  fellow  of  the  college ',   and,  on  his  refufal, 
the  next  fenior  divine,  and  fo  downwards;  and  if  all  fhould 
refufe,  then  any  other  perfon  they  fhould  think  fit.     On 
the  death  of  an  incumbent,  in  May  1749,  this  living  was 
offered  to  the  fenior  fellow,  and,  on  his  refufal,  to  the  next, 
till  it  came  to  the  tiirn  of  Mr,  Green,  as  next  fenior  di- 
vine, who  offered  to  take  it ;  but  Dr.  Rutherforth  infifled, 
that  he,  being  doftpr  in  divinity,  was  to  be  confidered  as 
the  perfon  defcribed  by  the  tcftator,  and  appealed  to  the 
bifhop  of  Ely,  as  vifitor,  who  was  of  opinion,  that  Dr., 

(n)  Mafter  and  fenioi;  fellows  of  St,  John's  College,  Cambridge,  v. 
T^ddington,CIcrk,iBMr.  158.     Rexv.  BiOiopof  Ely.     iBl.Rep.  71. 
(i?)  Vid,  Rex  V.  Windhai^  Cowp.  378, 

S  4'  Rutherforth 


264  THE     LAW 

Rutherforth  was  within  the  defcription  of  the  will,  and 
therefore  required  the  college  to  prefent  him  ;  and  they, 
to  aToid  being  cenfured,  made  a  fpecial  prefentation  to  him 
under  their  common  feal.  Green  infifted,  that  as  the  ad- 
vowfon  was  devifed  to  the  college,  under  a  particular  truft, 
not  by  the  founder,  but  by  a  third  perfon,  the  vifitor  had  no 
jurifdi<5lion  i  and  therefore  he  filed  a  bill  in  chancery 
againft  the  college  and  Dr.  Rutherforth,  praying,  that  the 
prefentation  to  the  latter  might  be  cancelled,  and  that  the 
former  might  be  directed  to  prefent  him  as  intitlcd  under 
the  truft  of  the  will. 

Dr.  Rutherforth  put  in  a  plea  to  the  jurifdi.<5lion 
of  the  court,  in  which  he  dated  the  will  and  the  ftatutes 
of  the  college ;  that  the  bifhop  of  Ely,  for  the  time  being, 
was  vifitor,  and  had  power  to  determine  exclufively  aU 
controverfies  about  the  conftru<ffcion  of  the  ftatutes,  and 
the  right  of  prefentation  to  livings,  w^hether  given  by  the 
original  founder  or  by  a  fubfequent  benefe£tor ;  that  he 
had  appealed  to  the  vifitor,  and  that  the  college  had  put  in 
an  anfwer  to  his  appeal,  but  that  the  plaintiff  had  never  ap- 
pealed to  the  vifitor  to  hear  his  claim :  he  therefore  prayed 
the  judgment  of  the  court,  whether  he  ought  to  be  com- 
pelled to  give  any  further  anfwer  to  the  plaintiff's  bill,  and 
whether  the  cpurt  ought  to  proceed  further  in  the  fuit. 

The  cafe  was  argued  before  Lord  Hardwicke,  chan- 
cellor, and  Sir  John  Strange,  mafter  of  the  rolls,  who,  after 
having  taken  time  to  confider  the  qUeftion,  delivered  their 
opinion  againft  the  plea  to 'this  effe6l : — that  this  was  not  a 
purchafe  or  general  bequeft  of  an  advowfon  to  the  college, 
without  any  particular  truft  annexed,  Xvhich,  though  com- 
ing after  the  appointment  of  a  vifitor,  and  from  a  perfon 
not  the  founder,  would  have  fallen  under  the  general  regur 
lations  by  which  all  other  property  of  that  nature  was  con- 

t^rouled 


OF    CORI*ORATIONS.  265 

trouled,  and  would  have  been  equally  the  objeft  of  vifita- 
lorial  power :  but  this  was  fubjedt  to  a  particular  exprefs 
truft,  inconfiftent  with  the  regulations  by  which  the  other 
property  was  to  be  governed,  and  therefore  Handing  on 
fpecial  circumftances  peculiar  to  itfelf,  was  a  proper  fub- 
jeft  for  the  jurifdiftion  of  this  court : — That  the  merits  of 
the  contrbverfy  depended  on  the  conftruftion  of  the  will, 
and  on  the  execution  of  the  particular  trufts  contained  in 
it : — That  notwithftanding  tl\e  antiquity  of  the  will,  the 
cafe  was  to  be  confidered  as  it  flood  on  the  whole  frame  of 
the  will,  and  from  the  death  of  the  teftator.  At  the  time 
when  the  will  was  made  the  living  was  full,  and  therefore 
the  teftator  could  only  diretSl  what  he  would  have  done  on 
the  firft  vacancy.  If  on  a  vacancy,  the  nephew  being 
capable,  had  offered  to  take  the  living,  and  the  college  had 
refufed  to  prefent  him,  he  might  have  had  recourfe  to_a 
court  of  equity,  which  would  have  compelled  the  execu- 
tion of  the  truft  :  a  private  perfon  would  undoubtedly  have 
been  compellable  to  execute  it ;  and  in  a  matter  of  truft, 
it  was  pf  no  confequence  who  were  the  truftees,  private 
perfons  or  a  collegiate  body ;  though  the  founder  of  the  lat- 
ter had  given  a  vifitor  to  fuperintend  his  own  bounty,  yet  as 
between  one  claiming  under  a  feparate  b/snefaftor  and  thofe 
ti'uftees  for  fpecial  purpofes,  the  court  would  confider  them 
as  truftees  only,  and  oblige  them  to  execute  the  truft  under 
the  diredlion  of  the  court. — They  might  have  been  com- 
pelled alfo  to  execute  the  next  truft  in  the  will  to  one  of 
the  name  and  kindred. — That  which  came  under  the  next 
provifion,  was  as  exprefs  and  fpecial  a  truft  as  either  of 
the  other  j  with  this  only  difference,  that  thofe  trufts  were 
at  an  end,  whereas  this  was  permanent,  to  be  executed  on 
every  vacancy,  and  called,  therefore,  as  loudly  for  the  in- 
{erpofition  of  the  court  as  cither  of  the  others.    Had  a 

bill 


'^66  THI    i,AW 

biU  be^n  brought  recently  after  the  death  of  the  teftator 
agai^  the  heir  at  law,  it  muft  have  been  for  two  purpofe^ ; 
firft  to  have  the  will  declared,  well  proved  and  efl^Uiil^d 
againft  the  heir,  and  all  claiming  under  him  -,  and  then  to 
have  the  diredUon  of  the  court  for  carrying  the  trufts  of  the 
will  into  execution :  the  court  would  then  have  taken  into 
confideration,  wha^  were  the  trufts  and  the  dirc<9:ions  pro- 
per to  be  given  refpofting  the;n ;  and  ha4  this  truft  for  the 
fenior  divine  come  under  confideration,  the  court  would 
have  declared  their  feofe  of  the  words,  and  who  it  was 
that  came  under  that  defcription;  and  if  afterwards  the 
college  bad  contradided  the  judgment  of  the  court,  by 
prefenting  a  fellow  not  within   the  defcription  of  the 
will  according  to  that  judgment,  the  court  would  not  have 
endured  fuch  04)poiltion,  but  would  have  relieved  the  in- 
jured party :  fo,  if  the  college  had  been  difpofed  to  purfue 
the  opinion  of  the  court,  but  had  been  intimidated  by  the 
vifitor,  who  put  a  different  conftrudion  on  the  will,  the 
court  would  have  carried  its  own  decree  into  execution. 
If  this  would  have  been  the  cafe  on  a  recent  application, 
there  was  nothing  in  the  nature  and  reafon  of  the  thing 
why  it  (hould  not  be  fo  now,  though  directions  on  this 
part  of  the  trufts  had  not  been  prayed  till  wanted  in  this 
particular  inftance.— Allowing  the  bifliop  to  have  been  ap- 
pointed general  vifitor  of  the  college  .by  the  founder,  yet 
this  being  given  on  fpecial  truft,  the  vifitor  had  nojurif- 
diftion  to  determine  who  fhould  beprefented  to  this  reftory, 
or  to  interpofe  in  the  execution  of  the  trufts  of  this 
will.    This  would  have  been  the  cafe,  had  there  been  no 
jnconfiftency  between  the  will  and  the  ftatutes  of  the  col- 
lege 5  but  when  the  nature  of  thofe  ftatutes  wa^  confidered, 
and,   fo  far  as  the  college  livings  were  concerned,  they 
^ere  compared  to  the  trufts  of  the  will,  it  would  appear 

tha:t 


OF    Cd^PORAtlONS.  267 

that  to  judge  6y  the  ftatutes,  which  Wei4^  ^«  fultt  of  the 
vifitor,  would  be  to  counteraa  the  intent  of  A6  teftM^ 
and  to  defeat  the  wiH :  the  members  werb  f#drn  t»  obey 
the  ftatutes  on  pain  of  Amotion ;  hot  if  M  ztvowfom  tVW 
accepted  by  them  on  other  terms,  thftt  imift  ht  eoAftderetf ' 
as  not  within  the  compafe  of  the  oath  :  othetwife  it  trtetk 
follow,  that  where  there  was  a  vifitor^  a  fubiequent  bene«- 
fa6lor  couM  not  be  the  regaljtor  <rf  hiso^n  gift.-^*A  fub- 
fequent  benefafiion,  indeed,  might  be  put  midef  dM  (kmb 
power  as  thofe  of  the  founder,  and  diete  ihe  vilkcilr  wocil4 
have  an  equal  authority  otrer  them:  but  here  the  donor 
iiad  given  rules  in  his  wifl,  which  Wfere  his  ibttutes  5  he 
h^d  not  made  the  biihop  his  vifitol:,  nor  e'xchided  the  jurif- 
'6iftion  oT  this  court  by  erediftg  aiidth^rfa)^ 

The  bifhop,  as  vifitor  of  the  deim  and  chapter^  doeft 
Tiot  feem  to  have  a  jurifdiAion  todaEeriliin^4i(|Mitesfe- 
tween  the  members  on  the  Aibje£t  of  dieir  corporaecie  pro^ 
perty. 

A  sTAi^L  of  a  prebehdary  in  the  <sithednd  chttn:h  of 
Durham  hud  been  vacant  two  years  and  a  half.  Tht'other 
prebendaries  had  divided  among  them  the  intertnedtate 
profits.  Dr.  Sterne  being  appointed  to  ^the  ftatl,  infifted 
that  he  was  intitled  to  them,  and  appli^  to  tbe<b^op,  as 
vifitor,  for  his  determination  on  the  filbj^.  Tht  bifliop 
not  confidering  thisijueftion  as  a  fubjeft  Of  vifitalorial 
power,  refufed  to  take  cognirzance  of  It,  untafs  under  the 
authority  of  the  court  of  King's  BetKh.  The  fubjeS 
coming  before  the  court,  Lord  Mansfield  ISdd,  he  thought 
that  an  acftion  at  law  was  the  proper  HM^od :  ihat'"  whe- 
ther the  bifliop  could  have  a  jurii<K£tibn  to  j^teimitie  this 
point;  or  whether  matters  of  property  in  cfadiedrals  ciMiM 
be  determined  otherwife  than  by  the  law  of  theland,  was 

(a)  Green  v.  -Rathcrforth.    i  Vef.  4^1. 

a  great 


J 


a68  THE    LAW 

a  great  quiftiw/* — But  in  this  particular  cafe,  the  quef- 
tion  muft  be  litigated  not  only  with  members  of  the  body, 
but  with  executors  and  adminiftrators  of  deceafed  preben- 
daries ;  over  whom  the  hifhop,  fuppofing  him  viiltor,  and 
as  viiitor  to  have  conufance  of  fuch  a  cafe,  could  have  no 
power ;  which  alone  was  decifive  againft  his  jurifdi<^ion  in 
tbis  cafe  {a). 

Whether  the  bifliop,  as  vifitor  of  the  dean  and  chap- 
ter, has  a  power  to  decide  in  matters  of  election  to  vacant 
ftalls  of  the  cathedral,  is  a  queftion  which  does  not  feem 
to  have  yet  received  a  general  foliition :  but  it  has  been 
determined  that  he  cannot,  by  virtue  of  his  vifitatorial 
power,  iill  up  a  vacancy  by  lapfe. 

An  application  was  made  to  the  court  of  King's  Bench 
for  a  rule  to  (hew  caufe,  why  a  writ  of  prohibition  ihould 
not  iflue  to  prohibit  the  bilhop  of  Chichefler  from  pro- 
ceeding againft  the  dean  and  one  of  the  canons  refidentiary 
of  the  cathedral  church,  on  his  mandate  diroSling  them  to 
admit  George  Metcalf,  clerk^  to  be  ^  canon  refidentiary. 

The  fuggeftion  on  which  the  application  was  grounded, 
ftated  that  the  office  of  cahon  refidentiary  was  an  office  of 
truft  in  matters  eccleiiadical  and  temporal,  and  endowed 
with  feveral  tenements,  rents,  and  profits  j  that  previous 
to  the  year  1574,  all  the  thirty-one  canons  of  the  church 
were  refidentiaries,  when  an  ordinance  was  made  to  re- 
duce the  number  to  four  befide  the  dean.  That  the  right 
of  eleftion  of  a  canon  refidentiary  was  in  the  dean  and 
chapter,  who  themfelves  admitted,  inftituted,  and  indudled. 
That  the  hifhop  was  not  vifitor  as  to  fuch  elecS^ions,  nor 
had  any  vifitatorial  power  or'jurifdiftion  in  that  refpeft, 
nor  had  any  right  to  appoint  to  the  vacant  place  and  office 
of  a:  canon  refidentiary,  by  lapfe  or  otherwife :   that  in 

{a)  Rex  V,  Epifc,  Dunelm,  x  Bur>  567. 

Marcel 


.OF     CORPORATIONS.  296 

March,  1784,  the  place  of  one  of  the  canons  refidentiary 
became  vacant  by' the  death  of  Dr.  Hurdis ;  that  in  Au- 
guft,  the  fame  year,  the  dean  and  chapter  met  to  eleft  a 
fucceflbr,  when  there  were  two  candidates;  but  the  votes 
being  equally  divided,  no  eledlion  was  made :  tha^  in  Oc- 
tober another  meeting  was  held,  when  they  were  again 
equally  divided  :  that  the  bifhop,  by  his  monition  dated 
4th  of  January,  1785,  reciting  thefe  fafts,  and  that,  by 
reafon  of  fuch  failure  in  the  eleftion  of  a  canon  refidentiary, 
the  chapter  was  then  incomplete,  and  the  fervice  of  the 
church  neglefted,  and  that  two  of  the  prebendaries  had 
appealed  to  him  complaining  of  the  proceedings,  cited  the 
dean  and  chapter  to  appear  before  him  on  a  particular  day, 
to  fiibmit  to  his  vifitation,  and  to  (hew  caufe  why  they  had 
not  filled  up  the  vacancy  occafioned  by  the  death  of  Dr. 
Hurdis,  and  why  the  bifhop  fliould  not  by  his  power  and 
authority,  ordinary  and  vifltatorial,  fill  up  the  faid  vacancy, 
by  reafon  that  the  right  of  fo  doing  had  devolved  upon  him 
for  that  turn,  by  default  of  the  chapter  in  not  filling  up 
the  vacancy  in  due  time :  that  by  another  mandate  of  the 
bifliop,  dated  19th  of  January,  1785,  reciting  that  the 
dean  and  chapter  not  having  fliewn  fufficient  caufe  why  he 
fhould  not  fill  up  the  faid  vacancy,  he  had  appointed  Mr. 
Metcalf  to  be  a  canon  refidentiary  in  the  room  of  Dr. 
Hurdis,  he  commanded  the  dean  and  chapter  to  admit  Mr. 
Metcalf  into  a£tual  refidence ;  and  that  the  bifhop  was 
flill  endeavouring  to  compel  the  defendants  to  admit  Mr. 
Metcalf,  '  not withflanding  their  allegations  againfl  his 
right.. 

The  court  (a)  obferved,  that  this  was  not  a  mere  fpiri- 
tual  office,  but  a  freehold  attended  with  perfonal  advan- 
tages, although  the  perfons  ele6ling  were  indeed  all  eccle- 

(a)  Aflihurft,  BuUer,  and  Grofe,  J. 

iiaflical  i 


270  TUB    LA>r 

ibfticali  that  wbetbcr  the  biibop  bad  4  rigli.t,^  rifi* 
Cpr,  by  ccddiafticsil  cenfimes  to  compel  than  to  do  thcir 
diitf  and  proceed  to  an  eledion,  was  not  the  prefcnt  queC- 
tion:  that  had  tbatboen  the  cafe,  the  court  would  not  have 
haftily  ncf^red  that  power  i  but  he  could  not  go  further^ 
aod  take  the  right  of  xleAion  out  of  the  hands  of  the  dean 
and  chapter :  that  this  cafe  refembled  one  which  frequently 
Juppcaed  in  Afi  court  of  King's  Bench :  the  latter  had  the 
power  of  compelling  corporations  to  proceed  to  eledions^ 
which  was  m  Ae  mature  of  a  vifltatorial  power,  but  they 
never  affumed  the  power  of  appointing  any  perfon  them- 
tAv^  ill  cafe  the  corporation  did  not  proceed  to  eled : 
ihgt  CswcaX  points  latdy  decided  in  diis  court  with  refped 
to  this  very  church  of  Chichefter,  in  a  great  meafure  deterr 
siiood  the  prefent  .f  ueflion.    It  had  been  refolved,  thjit  a 
jnaryljOTJ'*  would  lie  to  compel  the  dean  and  chapter  to  fill 
up  ^  vacancy  among  the  canons  refidentiary ;  and  that  on 
iuch  a  oiandamus  the  court  would  compel  an  ele(^on  at 
the  peril  of  thofe  who  refifled ;  that  the  right  of  eledion 
was  in  the  dean  and  canons ;  that  the  dean  had  no  calling 
voice ;  that  the  canons  had  a  right  to  vote  by  proxy ;  and 
Jaftly,'that  there  was  no  lapfe  to  the  biibop  in  the  cafe  of  a 
canonry.^t  had  been  faid  that  the  bifhop  was  not  tounJ 
to  apply  for  a  mandamus :  the  court  agreed  he  was  not ; 
but  (aid  that,  if  he  made  the  application,  they  were  bound 
.to  attend  to  hiniy  and  that  it  was  not  clear  that  a  man- 
damus would  not  be  granted  on  the  application  of  any  other, 
perfon.'^On  theie  principles  they  granted  the  prohibit 
tion  (a). 

But  though  the  bifhop  as  vifitor  cannot  appoint  to  a 
vacant  place  in  a  cathedral,  in  default  of  thofe  who  have 

(«i)   I  Tenn  Rep.  ^50.    Bifiwp  «f  Chichefter  v.  Harward  and 
Webber. 

the 


OF    C  OH  POUATIONS.  27I 

the  right  of  de<%ion ;  yet  he  may  in  his  gtmral  vi^mkn^ 
by  virtue  of  his  general  vi^Mt9rM p§W9r^  deprive  a  canon 
or  prebendary  for  incontinency  or  odier  offences  defcribed 
in  the  ftatutes ;  and  though  tfaefe  appoint  ibi&e  prriiminary 
forms  to  be  obferved^  ajs  that  he  ftall  be  dirice  admpni&ed 
before  4tppiicatim  ht  niade  to  die  bifliop  fer  the  purpofe  of 
his  removal)  yet  the  bi&op  may  of  his  own  atatbority  in 
his  vi^atitm^  wiihdut  theib  ^eliminary  forms,  deprive 
bim  (a). 

Though  the  vlfitor  of  a  cdSege  have  a  jurildi^lion  over 
matters  of  eledion,  he  has  no  tight  to  appoint  to  a  vacant 
office  in  de&alt  of  the  ekdors ;  and  if  the  ftatutes,  in  de- 
fault of  an  e)e£bton  by  the  coUege,  by  exprefe  provifioii 
^ive  the  appointment  to  the  feme  perfon  who  is  genial 
vHitor,  be  bas  that  appoi»tmefit  not  as  vifitOT,  but  by  vir- 
tue of  thatexprefs prroviikm. 

.  • 

By  the  ftatutes  of  Peterhoufe  College,  in  Cambridge, 
the  biihop  of  Ely  was  appointed^  general  vifitor*  The 
ftatute  which  defcribed  the  qualifications  of  the  inafler  had 
this  claufe.  "  In  cujus  clcftione,  hoc  imprimis  obfervari 
Yolumus,  tit  ipfius  domus  atque  fociorum  cjufdcm  femper 
ratio  habeatur ;  ut  hi,  fi  qui  inter  cos  ad  hoc  munus 
obeundum  inveniantur  idonei,  cseteris  prcferantur ;  fm 
hujuffiiodi  in  domo  niilli  exciterint^  turn  aliunde  afiuman* 
tur."  It  then  directed  that  two  fhould  be  presented  to  the 
bifhop  of  Ely,  who^fhould  choofe  between  the  two.  The 
ftatute  '^de  eledione  magiftri"  diredted,  that  the  two, 
chofen  in  the  manner  therein  particularly  prefcribed,  fhould 
b^  prefented  without  delay  to  -the  bifhop  of  Ely  Tor  the 
time  being,  if  the  fee  fhould  be  fall,  or,  in  the  vacancy  of 
the  fee,  to  the  guardian  of  ihe  ipiritualties ;  that  the 
bifhop  or  the  guardian,  inthefe  refpe£tive  cafes,  fhould 

(a)  -Rex  v.'biOiop  of  Chcfter.    1  Wilf,  «o6.     i  Bh  Rep.  aa. 

nominate 


272  THE    tAW 

• 

nominate  one  of  the  two  to  be  mailer;  but  that  they 
ihould  give  frU faith  to  the  return  of  the  college :  it  alfo  pro- 
vided, ^  that  if  all  the  feUows,  or  the  greater  part  of  them, 
ihould  not  agree  in  the  firft  fcrutiny^  then  they  fliould 
proceed  to  a  fecond  and  a  third  fcrutiny,  until  two,  in  the 
manner  aforefaidy  ihould  be  nominated  to  the  office  of 
matter ;  but  that  if  in  the  third  fcrutiny,  which  was  to  be 
held  within  three  days  from  the  firft  day  of  the  eledion, 
then  he  whom  the  bifliop  of- Ely,  or  in  the  vacancy  of  the 
fee,  the  guardian  of  the  fpiritualties  ihould  efteem  fit, 
ihould  be  appointed  mafter." 

On  a  vacancy  of  the  mafterfhip  in  1787,  a  day  was  ap* 
pointed  for  an  election  according  to  the  direSions  of  the 
ilatutes.  Three  candidates  offered  themfelves,  George 
Borlafe,  B.  D.  Daniel  Longmire,  B.  D.  and  Francis 
Barnes,  B.  D.  Mr.  Borlafe  was  at  that  time  a  fellow  of 
the  college ;  Mr.  Longmire  had  been  a  fellow  of  it,  but 
had  vacated  his  fellowfhip  by  accepting  a  college  living  in 
the  year  1776,  notwithftanding  which,  however,  he  had 
continued  his  name  on  the  boards  of  the  college :  Mr. 
Barnes  was  vice  provofl  of  King's  College,  and  had  never 
been  a  member  of  Peterhoufe.— On  the  day  appointed  for 
the  eleftion,  eleven  of  the  fellows,  being  the  whole  num« 
ber  but  one,  aflfembled  in  the  chapel,  and  proceeded  to  the 
election  according  to  the  forms  prefcribed  by  the  flatutes : 
all  of  them  nominated  Mr.  Borlafe,  eight  nominated  Mr. 
Barnes,  and  three  of  them  Mr.  Longmire.  Previous  to  the 
day  of  eleSion,  neither  the  fenior  fellow  of  the  college  nor  Mr* 
Longmire  knew  that  Mr.  Barnes  was  to  be  a  candidate. 
The  majority  of  votes,  however,  being  declared  to  be  in 
favour  of  Mr.  Borlafe  and  Mr.  Barnes,  the  fenior  fellow 
pronounced  them  to  be  nominated  and  elected  by  the  fel- 
lows of  the  college  to  be  prefented  to  the  bifhop  of  Ely  : 

on 


OF    CORPORATIONS.  273 

on  diieiame  day  letters  under  the  common  feal  of  the  col- 
lege were  made  out  In  tefUmony  of  the  elQ(3:ion,  nomi- 
nating and  prefenting  Mr.  Borlafe  and  Francis  Barnes  to 
the  biihop,  requiring  him  to  appoint  one  of  them  to  be 
inafter  of  the  college ;  the  letters  were  delivered  to  tj^e 
bifhop  by  two  of  the  fellows,  who  reqi^efted  him  to  make 
an  i9\mediavte  appointment,  informing  him  th^t  die  two 
perfqns  nomii^ated  were  at  h^ad,  and  that  tfoe  preference 
of  the  fo<ye.ty  was  in  fitvour  pf  M/«  Bpirlafe.  Th^e  I^ii^top, 
fading  tbat  aperfon  from  another  college  wa?  prpfej^^ed 
jto  him,  was  induqed  to  Ai^e  jTome  ei^q^^iries  into  the  f e^- 
fon  of  it,  and  whether  there  was  any  othej.  perfon  of  the 
college  beCide  ^Mr.  Borbfe;  p/i  whjch  he  wa^  infQrmed 
by  one  of  ^e  fellows,  .that  ti^e  yyas  no  ot^er  pNcribn 
qualified  among  tjbeipfelyes,  v^d  that  tliey  had  obeyed  tjie 
jQatu^s.  Conceiving  that  he  could  not  properly  difcharge 
bis  duty,  as  viiitor  of  the  cpllege,  yirithout  matvirely  con- 
sidering the  ftatM^te^,  he  declijnied  at  that  time  to  Qi^e  any 
appointment  cf  either  of  the  perfpns  nominated  to  hini* 
Five  days  after  this,  I^r..  Lpngi?;L.ire  and  the  fenior  fellow 
^eprefented  to  the  b.iiihop,  iliat  Mr*  Lo|igmire  h^  been  a 
candidate;  that  he  had  had  three  vot^s,  a^d  .tM  he  was 
qualified  s^cording  to  the.ftatutes,  aod  hild  never  ceafed 
to  be  a  membjgr  of  .^t  college,  .tl\qugb  hisy^/Zs^u^/^  ha^ 
been  vacat^  by  th^  ^^cceptfince  of  a  college  living  5  for 
which  reafon  he  conceived  himfelf  witiiin  the  raeaping  of 
Hhc  pjeferenqe  giycn.by  the,ftatute?  to  perfpns  pf  the  col- 
lege  pver  ftrapgers.  The  biihopj  .^ft.er  maturely  con- 
fidering  the  fl;aWtes,  thoHght  Mr.  J-o^gmire  entitled  to 
ihe  prciferc^vce  claimed  by  him,  4eclarq4  the  return  of 
Sprlafe  and  Bar^r^es  null  and  yoid,  .as  not  beiag  in  his 
iudgn>^pt  m^  fgwaWy  to  tjxe  ^?^tcs,  and  by  ^  iijftru- 
me;nt  u^^er  .^is  ba^d  Ju^d  epif(:5>j:|^  ^(eal,  appoin^fld  Mr, 
Vox.  U.  T  '  Longmire 


274  '^^^    LAW 

Longmire  to  be  mailer  of  the  college,  by  virtue  of  the 
audiority  given  him  by  the  ftatutes,  and  in  right  of  his 
vifitatorial  power.  Mr.  BorlaTe  and  two  other  fellows 
formally  protefted  againft  this  appointment,  as  being  in 
their  judgment  contrary  to  the  ftatutes,  and  contrary 
to  the  fenfe  and  practice  both  of  the  college  and  of  its 
vifitors  in  former  eledbions :  their  proteft  having  no  effef^, 
they  applied  to  the  court  of  King's  Bench  for  a  rule 

filing  on  the  bifliop  to  (hew  caufe,  why  a  mandamus 
ould  not  iflue  direded  to  him,  commanding  him  to  ap- 
point one  of  the  two  peribns  prefented  to  him  to  be  mafter 
of  the  college. 

Thesb  faJ&s  and  theftatutes  which  were  thought  to 
be  material  being  laid  before  the  court,  three  queftions 
were  made*  Firft,  Whether  this  was  a  proper  obje£l 
of  the  biihop's  vifitatorial  authority.  Secondly,  Whe- 
ther he  had,  in  the  prefent  cafe,  aded  as  vifitor.  And 
Thirdly,  Whether  the  interpretation  which  the  college 
had^iven  to  the  fhitutes  was  the  true  one  ? 

On  the  firfl  queflion,  the  court  obferved  that  there 
was  no  doubt  but  the  founder  had  conftituted  the  bifhop, 
<^  Ely  general  vifitor  i  but  he  had  a  right  to  reflrain 
him  in  particular  cafes,  if  he  thought  proper;  and  then 
he  was  not  vifitor  as  to  thofe  particular  cafes.  This 
was  a  cafe  of  that  kind ;  the  only  power  which  the  bifhop 
could  exercii^  was  diat  of  judging  of  the  comparative  fit* 
nefs  of  the  two  perfons  nominated  by  the  fellows.  From 
the  tenor  of  the  flatute  "  de  eleftione  magiflri,"  it  evi- 
dently appeared  to  have  been  the  intention  of  the  framers 
of  it,  that  the  fellows  fhould  judge  of  the  fitnefs  of  die 
refpedHve  candidates ;  and .  every  precaution  had  been 
taken  that  they  fhould  not  eled  any  but  thofe  who  were 
properly  qualified,  by  obliging  diem  to  take  a  folemn  oath^ 

not 


OF    CORPORATIONS,  2J  ^ 

not  to  nominate  any  perfon  out  of  favour  or  affeiSlion. 
The  legiflator  having  intended  to  give  that  poorer  to  the 
fellov^^s,  had  by  this  ftatute  exprefsly  excluded  the  biihop 
from  interfering  in  their  choice.     He  was  required  to  give 

* 

full  faith  and  credence  to  their  nomination;  fo  that  he  was 
ODlyto^Q.  minifterially ;  or  at  moft  he  had  only  a  difcre- 
tion  left  him  as  to  preferring  one  of  the  two  j  beyond  that 
he  was  reftrained  by  the  ftatutes.  He  had  no  right  to  ap- 
point, in  this  inftdnce,  as  vifitor ;  his  authority  arofe  under 

an  exprefs  defignation  in  the  ftatutes,  and  he  muft  take  it 
as  it  was  there  given  him ;.  which  Was  only  in  cafe  the 
fellows  on  the  third  fcrutiny  did  not  agree  on  two  perfons 
to  be  returned  to  him ;  and  it  was  further  provided,  that  if 
the  fee  fliould  be  vacant,  the  guardian  of  the  fjjjritualties 
Ihould  have  the  fame  power  of  appointment ;  which  was 
an  additional  proof  that  this  had  no  connediion  with  the 
vifitatorial  power ;  zs  the  guardian  of  the  fpiritualties  was 
clearly  not  vifitor. 

.On  the  fecond  queftion,  it  was  equally  clear,  that  the- 
bifliop  had  not  a6led,  in  the  prefent  cafe,  in  the  chara&cr 
of  vifitor.     The  exercife  of  a  vifitor's  power,  was  a  judi- 
cial aft;  and  a  judge  could  not  determine  without  hearing 
the  parties  concerned.     So  that  had  this  been  a  proper  ob- 
jedJ:  of  the  vifitatorial  power,  he  ought  to  have  exercifed  it 
in  a  formal  manner,  and  ought  at  leaft  to  have  convened 
the  parties  interefted  to  give  them  an  opportunity  of  mak- 
ing a  defence.     But  the  very  Jbrm  of  the  appointment  of 
Mr.  Longmire  decided,  that  it  was  made  in  plena  jure.  .In 
this  he  afferted  a  right  vefted  in  him  by  the  ftatutes  by  rea- 
fon  of  the  nullity  of  the  eleftion,  and  proceedings  of  the 
fellows  in  not  prefenting  two  perfons  properly  qualified. 

The  third  queftion  depended  on  the  meaning  of  the 
word  *^  domus^**  in  the  ftatute  which  prefcribed  the  quali- 

T  %  fications 


276  THE    4AW 

ficatiotts  of  the  mafter :  on  one  hand  It  had  been  contend^ 
ed,  that  it  defcribed  only  thofe  who  were 'at  the  time  of  the 
eledidn  members  of  the  foundation ;  on  the  other,  that  it 
oxtended  to  all  thofe  whofe  names  continued  on  the  hoards 
of  the  collie,  which  was  the  cafe  of  Mr.  Longmire.— — 
The  court,  after  a  very  elaborate  argument,  and  examina- 
tion of  all  the  parts  of  the  ftatutes  in  which  this  word  oc- 
curred, agreed,  that  it  was  to  be  taken  only  in  the  former 
fcnk^  and  coniequently,  that  the  college  bad  given  the  true 
interpretation  to  the  ftatutes.  The  mandajnus  was 

coniequently  granted  (a). 

The  power  of  the  viiitor  is  confined  to  offences  againft 
&e  private  laws  hf  the  college ;  he  has  no  cognizance  oi 
mBts  of  diibbedience  to  the  general  laws  of  the  land.   . 

By  die  statute  of  i  W.  and  M.  made  for  the  abrogating 
«f  the  oaths  of  fupremacy  and  allegiance,  and  appointing 
others  in  their  place  (^),  it  was  enabled,  ^'  that  if  the  mafter^ 
governors,  head,  or  fellow  of  any  college  or  hall,  in  either 
of  the  two  univerfities,  fhould  negle£l  to  take  the  oaths,  by 
the  a£l  appointed,  in  fuch  manner  and  before  fuch  peribns 
as  by  the  a£b  dired^ed,  before  the  firft  of  Auguft,  in  the  year 
f  689,  he  ihould  be  fufpended  from  his  office  for  the  fpace  of 
fix  months,  to  be  reckoned  from  the  laid  firft  of  Auguft, 
and  if  within  that  time  he  fliould  not  take  the  oaths  in  the 
iame  manner,  and  before  the  fame  perfons  as  he  ought  to 
have  done  before  that  day,  his  office  or  place  fliould  be 
void.' 

Several  fellow&  of  Saint  John's  College,  in  Cam- 
bridge, had  not  taken  thefe  oaths  within  the  time  pre- 
icribed,  and  a  mandamus  had  iiTued  from  the  court  of 
King's  Bench,  direfted  to  Humphrey  Gower,  the  mafter 

(a)  Rex  ▼.  Bifliop  of  Ely,  2  Term  Rep.  »90--34.5. 
{b)  I  W.  and  M.  ft.  1,  c.  8,  f.  8. 

of 


OP     COR  1^0  RATIONS.  277 

of  the  cdlegC)  commanding  bim  to  remove  thofe  fellows. 
On  the  return  to  this  mandamus,  one  principal  objediion 
to  the  writ  was,  that  there  was  a  vifitor  who  oi^gfat  to . 
take  cognizance  of  the  matter.     But  the  court,  on  the 
principle  above  ftated,  faid,  that  this  was  not  a  proper  fub-   . 
je£l  of  the  vifitatorial  jurifdidHon,  and  therefore  that  it  was    ' 
propef  for  the  interpofition  of  the  King's  courts  (^7). 

If  the  vifitor  exceed  his  authority,  a  prohibition  will 
lie  to  prevent  him;  this  is  manifeft  from  many  of  the 
cafes  already  cited  on  other  points  (b). 

If  the  vifitor  proceed  on  a  citation,  profefledly  founded ' 
on  an  authority,  which  it  afterwards  appears  he  did  not 
poilefs,  it  feems  his  whole  proceedings  are  void,  though  he 
might  have  taken  cognizance  of  the  fame  fubjeSs  under  his 
general  vifitatorial  authority,  , 

Thu^,  in  a  declaration  in  prohibition  by  Dr.  Bendey, 
againft  the  bifbop  of  Ely,  vifitor  of  Trinity  College,  Cam- 
bridge, a  citation  was  fet  forth,  commanding  Dr.  Bentley 
to  appear  before  him,  the  ^  faid  bifbop  of  Ely,  vifkatoreni 
fpeciaUtir  affignatum  et  fufficienter  authorifiktum  vigore 
fiatutorum  per  Eli%abitbam   quondam  hujus  Regni  Regi- 
Aam  fub  figiilo  fuo  magno,  magiflro,  fociis  eC  fcholaribus 
collegii  facro  i^xxStn  et  Individual  Trinitatis  infra  univerfi-> 
tatem  Cantabrigiae  reprefsntatorum  et  commendatorumy  ad 
examinandum  Magiilrum   CoJlegii  praedidi  de  et  iliper 
criminibus  et  exceffibus  in  (ecundo  membro  capitis  quad- 
ragefimi  did.  flatut."   at  fuch  a  time  and  place,  then  and 
there  to  anfwer  to  certain  articles  concerning  the  mal- 

adminiftration  of  his  office. In  a  preceding  part  of  the 

declaration,  thp  flatute  to  which  |his  citation  alluded,  was 

ia)  Rex  et  Reg.  v.  St.  John's  Col^jc,  4  Mod.  133. 
(A)  Vid.  Fitz.  io8, 305,  et  fcq.  1  Wilf  ao6.    £  BU  Rep.  a*.   -yWL. 
Rep.  15^.    1  Term  Rep.  650.  '  % 

T  3  fet 


278  THE    LAW 

fet  forth,  which  on  argument  was  decided  nut  to  have  cre- 
ated the  blihop  of  Ely  fpecial  vifitor,  but  to  have  fuppofed 
him  f  ^«^rtf/ vifitor  already,  and  only  to  have  introduced 
fome  new  regulations  to  be  obferved  in  the  particular  cafe 
mentioned  in  the  ilatute.  The  biihop  pleaded  a  ftatute 
of  Edward  the  fourth,  which  conftituted  him^^n/nz/vifitor, 
and  would  have  fupported  him  in  what  he  had  done,  and 
he  founded  his  proceedings  on  it:  but  Lord  Raymond, 
delivering  the  opinion  of  the  court,  obferved,  that  the 
fingle  queftion  was,  "whether  the  citation  was  well  found- 
ed i"  for  as  that  was  the  leading  procefs,  and  the  fole  bads 
of  all  the  fubfequent  proceedings,  if  it  ihould  appear  not  to 
have  been  warranted  by  any  legal  authority  in  its  firft 
emanation,  whatever  was  done  fubfequent  to  it,  was  with- 
out jurifdiAion,  The  citation,  or  rather  the  power  of 
ilTuing  it,  as  here  claimed,  was  exprefsly  founded  on  the 
fortieth  chapter  of  the  ftatutes  of  Queen  Elizabeth,  by 
which,  as.it  was  alleged,  the  bi(hop  vizsfpeclally  con- 
ftituted vifitor  to  examine  the  mafter,  &c.  but  as  it  ap- 
peared, that  the  biihop  was  not  appointed  viiitor  by  this 
ftatute,  it  followed,  of  his  own  fhewing,  that  the  citation 
was  ill  founded,  and  therefore  he  could  not  proceed  upon 
it,  let  him  have  whatever  other  power  or  jurifdiftion  he 
might  (^). 

It  was  formerly  doubted,  "  whether,  if  the  vifitor  refufed 
to  receive  and  hear  an  appeal,  the*  court  of  King's  bench 
would  compel  him  by  mandamus,'* 

(tf)  Bcntley  v.  bifhopof  Ely,  Fitz.  3x0, 11, 11,  i  Barnard  K.  B.  19*. 
Fortcfc.  198.  a  Str.  914,  In  the  two  latter  books,  it  is  faid,  the  judg- 
ment was  afterwards  reverfed  in  the  boiile  of  lords  on  a  writ  of  error  5 
and  the  prohibition  was  ordered  to  ftand  as  to  many,  and  a  confultation 

awarded  as  to  many  of  the  articles  exhibited  before  the  bifliop  againft 
the4o6lor. 

The 


OF    CORPORATIONS.  iy^ 

Thjb  firft  cafe  we  find  on  this  fiibjedl  is  that  of  Mr.- 
Uflier,  a  fellow  of  Univerfity  College  in  Oxford,  who  hav- 
ing been  expelled  from  the  college,  wifhed  to  appeal  to 
the  vice-chancellor  and  convocation,  as  vPfitors;  but  they 
having  refufed  to  deceive  the  appeal,  he  was  advifed  to  ap- 
ply to  the  court  of  King's  Bench  for  a  mandamus  to  com- 
pel thegi :  on  the  application  being  made,,  fome  doubts 
were  ftarted  as  to  the  point  of  faft,  whether  they  were 
vifitorsi  and  the  court  defired  the  ftatutes  to  be  laid  before 
them,  and  faid  they  would  confider  of  the  propriety  of 
granting  the  mandamus:  but  it  does  not  appear  what  was 
the  event  (^), 

In  a  cafe,  which  occurred  in  the  9  G.  2,  Lord  Hard- 
wicke  is  reported  to  have  faid,  that  "  he  did  not  know  any 
inflance  of  the  court's  having  granted  a  mandamus  to  a 
vifitor  to  execute  his  power,  though  at  the  fame  time  he 
'did  not  know  but  the  court  might  do  fo^  for  it  was  a  kind 
of  jurifdi(9:ion(i}. 

In  the  25  G.  2,  an  application  was  made  to  the  court  on 
behalf  of  Dr.  Vernon,  for  a  mandamus,  to  be  direded  to 
the  bifhop  of  Ely,  commanding  him  to  hear  an  appeal  mad^ 
to  him  as  vifitor  of  Trinity  College,  Cambridge,  by  the 
dodor,  who  complained,  that  he  had  been  wrongfully  de- 
prived of  hrs  fenior  fellowfliip  of  the  college.  The  appli- 
cation was  founded  on  affidavits,  that  the  bifhop  had  de- 
clined hearing  the  appeal,  until  he  Ihould  be  fatisfied  that 
he  had  a  right  to  vifit  the  college. 

On  fhewing  caufe,  Doftor  Vernon  grounded  the 
bifhop's  right  to  vifit,  on  a  body  of  ftatutes  given  to  the 
college  by  Edward  the  -fixth,  in  which,  among  other 
things,  the  bifliop  of  Ely,  for  the  time  being,  was  appointed 

(a)  Uflicr>  cafe,  5  Mod.  45*.     11  W,  3. 
{h)  Dr.  Walker's  cafe,  B.  R.  H.  21a. 

T  4  to 


1S6 


rut  lAVlr 


to  be  vifitor ;  And  Dodor  Vernon  fworc  tfiat  he  bcTicvrf 
thfefe  to  be  the  fbtutes  which  were  binding  on  the 
collegfc. 

On  the  other  fide,  it  appeared  to  the  court,  that  thefc 
ftatutes  had  never  been  put  in  execution ',  that  the  bidiops  of 
Ely,  for  two  hundred  years  paft,  had  not  vifited  the  college ; 
thit  thefe  ftatutes  Were  no  where  inrolled  5  that  another 
body  of  ftatutes  was  given  to  the  college  by  Queen  Eliza- 
beth, in  which  no  notice  was  taken  of  thofe  of  Edward  the 
fixtK,  although,  in  many  refpefls,  contradi£lory  to  them  j 
that  all  the  members  of  the  college  took  an  oath,  that  they 
would  obferve  th^  ftatutes  of  Queen  Elizabeth  j  and  that 
jieither  the  book  of  the  ftatutes  of  Edward  tHc  fixth,  nor 
any  copy  of  it,  was  to  be  found  among  the  archives  of  the 
college. 

The  court  obferved,  this  was  a  controverted  queftton, 
and  that  it  was  not  at  all  clear  to  them  tvh  was  vifitor  i 
They  declined  giving  ai\  opinion,  whether  a  mandamus 
ought  to  be  granted  in  any  cafe  whatever  to  hear  an  ap* 
peal)  the  queftion  had  never  been  determined ;    Uiher'$ 
cafe  came  neareft  to  the  prefent,  in  which  the  moft  eminent 
counfel  at  the  bar  were  concerned ;   but  though  the  court 
had  been  nioved  feverdl  times,  yet  at  laft  nothing  was  done 
in  it.— ^It  was  well  known  the  court  could  not  grant  a 
mandamus  to  compel  any  perfon  to  exercife  a  jurifdiftion, 
to  which  he  was  not  moft  cleariy  apjiointed,  and  which  he 
was  not  bound  by  the  law  to  e^'ercife.    In  the  prefent  caft, 
if  a  mandamus  were  granted,  it  tftuft  be  on  the  fuppofition 
that  the  bifliop  was  vifitor  j  this  filppbfition  might  faefalfejj 
and  then  if  the  writ  wete  granted,  and  the  right  of  vifita* 
tion  (hould  afterwards  be  found  to  be  in  the  crown,  the  at- 
torney general  might  come  for  a  prohibition ;    fo  that  tfa^ 
court  would  be  adting*  moft  abfurdly,  by  commandi/i||p 

w4 


ofcorporations.  281 

ahi  prdhiblting  a  man  to  exercife  one  and  the  fame  ju- 
rifdiftion  (a). 

It  is  now,  however,  determined,  that  Where  there  is  no 
doubt  about  the  perfon  of  tlje  vifitbr,  the  court  will  grant 
aimahdkmus  to  compel  him  to  redeive  die  appeal,  Thi* 
was  determined  in  the  cafe  of  the  bifliop  of  Lincoln,  in 
^hich  a  mandamus  was  prayed  to  be  diredled  to  him,  as 
vifitor  of  Lincoln  College,  in  Oxford,  to  compel  him  to  re- 
ceive, hear,  and  ddteritiine  an  appeal  of  Dr.  Halifax,  who 
cbmplained  bf  an  undue  eledtion  to  the, office  of  reSor  of 
that  college,  towhith  Mr.  Horner  had  been  admitted.  Th6' 
court  determined,  that  wherd  by  the  ftatutes  of  a  college  a* 
vifitor  was  ajipolntcd,  and  an  appeal  was  lodged  with  hirti, 
diey  would  cbmpel  him  to  heat  the  patties,  and  htmfomi 
judgment ;  though  they  v^ould  not  oblige  him  to  gO  intd 
the  merits  of  the  complaint,  but  that  it  was  fufficient  if  he' 
decided,  that  the  appeal  came  too  late  (^). 

But  where  th^  vifitor  has  afhially  executed  a  feAtendtf 
of  expulfionj  though  he  may  appear  to  have  e^cceeded  hi* 
jurifdi£tion,  a  mandamus  will  not  lie  to  reftore  th6  party 
ejcpelled,  for  that  would  be  to  command  the  vifitor  to  re- 
rerfe  his  own  fentchce  (c). 

Tnt  party,  however,  againft  whdni  die  fentehce  has 
b^en  executed,  may  have  a  rcthedy  by  ejeftmfentfrf)  ;  6r 
fte  may,  it  is  laid,  have  an  adioh  fbt  diamages  agaitift  th6 
vifitor  {^). 

.•WTHfiK  the  vifitor  ha$  pfoAounced  a  fentencef,  which  by 
|ihe  ftatutes  of  the  college  ar  particular  oflicef  is^to  put 

(a)  Rex  V.  biihop  of  Ely,  1  Wilf.  266.    t  Bl.  Kep.  5a. 
^   {b)  Rex  V.  yfl^op  of  Lincoln,  a  Term  Rep.  338-*in  the  notec • 
(<:)  BrideoaOTcaie,  H.  liAnh,  cited  i  Wilf.  20^.    1  Bl.  Rep.  15, 
.  »6,  in  Rex  v.  biftiop  of  Chcfter,  and  i  Bl«  Rep.  58*  in  Rex  v.  bifliop  of 

»iy. 

\d)  Per  Lee  C.  J,  1  Wilf,  209.  <^)  %  Vcf.  +70.       ' 

in 


a82  THE     LAW 

in  execution,  the  court  of  Xing*s  Bench  will  not  compel 
that  particular  officer  by  mandamus,  to  do  his  duty ;  be. 
caufe  that  would  be  to  interfere  with  the  privilege  of  the 
vifitor,  who  has  power  to  compel  the  proper  perfon  to  ex- 
ecute the  fentence :  but  it  feems  doubtful,  whether,  if  the 
vifitor  himfe]frefuf»5  to  compel  the  execution  of  the  fen- 
tence, the  court  will  grant  a  mandamus  directed  to  him  for 
that  purpofe. 

By  the  ftatutes  given  by  Queen  Elizabeth  to  Trinity 
College  in  C^nibridge,  it  was  ordained,  ^^  that  in  cafe  the 
mafter  fhould  at  any  time  be  examined  before  the  vifitor, 
the  btihop  of  Ely,  and  be  lawfully  conviAed  before  him  of 
dilapidations  of  the  goods  of  the  college,  or  violation  of  the 
ftatutes,  he  fhould,  without  delay,  be  deprived  of  his  office 
by  tiie  vice-mafter,  and  that  without  appeal."  One  of  the 
fellows  of  the  college  promoted  a  fuit  againft  Dr.  Richard 
Bentley,  the  mafter,  before  the  biihop  of  Ely,  among  other 
things,  for  dilapidation  and  violation  of  the  ftatutes^  in 
which  feveraL  articles  were  exhibited  againft  Dr.  Bentley 
for  that  purpofe;  a  prohibition  was  granted  by  the  .court 
of  King's  Bench,  prohibiting  the  biihop  to  proceed,  on 
tile  ground,  that  he  was  acting  beyond  his  jurifdifiion ;  on 
a  wHt  of  error  to  the  houfe  of  lords,  a  confultation  was 
awarded,  as  to  fuch  articles  as  related  to  the  dilapidations 
and  violation  of  the  ftatutes  (a) :  the  bifliop  then  having 
confidered  the  evidence  on  both  fides,  adj  udged,  that  the  doc- 
tor was  guilty,  andliad  incurred  the  penalty  of  deprivatiA 
of  his  office.  Dr.  Walker,  the  vice-mafter,  on  application 
to  him  to  execute  the  fentence,  refufed,  on  which  a  manda- 
mus was  direded  to  him,  commanding  him,  without  delay, 
to  deprive  Dr.  Bentley,  or  to  fignify  caufe  tolfae  contrary, 

(n)  Vid.  ante,  p.  278. . 

The 


OP    CORPORATIONS.  283 

« 

The  writ  recited,  that  the  college  was  founded  by  Henry 
the  eighth  5  that  Edward  the  fixth  had  given  it  a  body  of 
ftatutes,  by  which  among  other  things,  it  was  ordained, 
that  the  bi&op  of  Ely  (hould  be  vifitor;  and  that  Queen 
Elizabeth  had  given  other  ftatutes,  among  which  was  one 
to  the  cffe£l  before  mentioned  j  and  then  recited  the  pre- 

ceding  fadls.  * 

Dr.  Walker,  in  his  return,  alleged,  that  the  ftatutes  of 
Edward  the  fixth,  by  the  acceptance  of  thofe  of  Queen 
Elizabeth,  were  cancelled,  and  particularly,  that  the 
ftatute,  by  which  the  bifhop  of  Ely  was  QotxKxtoXsA  general 
vifitor  of  the  college,  was  abrogated  and  made  void,  and 
that  no  other  ftatute  was  granted  by  the  (aid  Queen,  or  by 
any  of  her  fucceflors,  by  which  the  vice-mafter  was  fub- 
jed  to  any  vifitatorial  power,  other  than  that  of  the  Queen 
and  her  fucceffors,  as  general  vifitors  of  the  college.  He 
then  ftated  the  proceedings  of  the  bifhop  z&  Jpecial  vifitor 
of  the  mafter,  and  alleged,  that  tlie  King  was  ^/n/ra/ vifi- 
tor of  the  college,  and  in  that  charaAer  had  undoubted  au- 
thority to  caufe  the  fentence  of  deprivation  to  be  executed. 

Lord  Hardwicke  obferved,  that  if  the  bifhc^  was  to  be 
taken  to  be  general  vifitor,  as  the  writ  fuggefled,  it  de- 
ftroyed  itfelf,  for  then  the  vice-mafter  was  only  a  miniftei* 
to  put  his  fentence  in  execution,  and  a  niandamu$  bad 
never  iflued  to  an  officer  of  an  inferior  court  to  com- 
pel him  to  do  his  duty;  for  that  if  he  reiiiied  to  do  it|  the 
ju||ge  might  deprive  him  of  his  office.  The  fame  ob- 
je£tlon  applied,  if  the  King  was  vifitor,  as  was  fuggefted  in 
the  return:  if  the  bifhop  was  vifitor,  he  might  vjfit  and 
remove,  or  punifli  the  vice  mafter,  and  the  court  could  do 
no  more;  and  if  the  King  was  vifitor  application  might  be 
made  to  him  to  vifit ;  fo  that  in  neither  cafe  was  it  proper 
to  award  a  peremptory  mandamus  {a), 

(a)  Dr.  Walker's  cafc,«.  R.  H.  xii. 

After 


2^4  THE     t  A  W 

APTCft  dik  determination,  an  application  was  made  to 
the  bifhop,  complaining  of  Dn  Walker's  refuial,  and  re- 
quelling  him,  as  general  vifitor,  to  compel  Dr.  Walker 
to  execute  the  fentence,  which  the  bifbop  had  pronounced 
zs/pecial  vifitor }  which  the  biihop  refiifed  to  do.    On  this 
an  application  was  made  to  the  King's  Bench,  for  a  man-  ' 
damus  to  be  directed  to  the  bifhop,  commanding  him  to 
compel  Dr.  Walker  to  execute  the  fentence.      On  this 
Lord  Hardwicke  obferved,   that  a  mandamus  could  not 
properly  be  direded  to  one  man,  commanding  him  to 
compel  another  to  do  an  a£l :   but,  however,  a  rule  was 
granted,  calling  on  the  biihop  to  fliew  caufe,  which,  after 
much  argument,  was  difcharged,  principally  on  the  ground, 
that  it  was  not  clear  whether  the  biihop  or  the  King  was 
general  viittor  (a). 

Though  it  be  a  general  nde,  that  where  there  is  a  vifi- 
t6ry  iio  mandamus  lies  to  compel  the  execution  of  any 
thing  within  the  vifitor's  jurifdidion,  yet  diat  rule  does  not 
apply  where  the  viiitor  is  himfdf  the  party  who  is  to  do  , 
the  t£t  required  J  or,  in  other  words,  where  the  fame  per- 
(dn  who  by  one  office  is  tq  do  an  ad,  is,  in  another  right, 
alio  viiitor. 

TntR  Cdlegiate  church  of  Mancheiler  was  founded  and 
mAi€  a  body  corporate,  by  Charles  the  firfl,  in  the  eleventh 
year  of  bis  reign,  and  the  biihop.  of  Cheiler,  for  the  time 
l^ing,  was  appointed  vifitor:  George  the  firil  allowed 
the  th^n  biihop  of  Cheiler  to  hold  the  wardenihip  of  the 
Collegiate  Church  in  commendam:  in  the  iiril  year  of 
George  the  fecond,  a  mandamus  was  dire£l:ed  to  the 
bt&op  as  warden  of  the  college,  commanding  him  to  ad- 
mit Dr.  Aihton  as  chaplain.    The  biihop  returned  the 

(ii)  Rex  T.  biAop  of  Ely,  Andr.  176. 

foundation. 


/    OF    CORPORATIONS.  28^ 

foundation,  and  his  appointment  as  vifitor.  The  court 
confidered  this  as  an  exception  to  the  general  rule,  for  the 
^wo  offices  of  vifitor,  and  of  the  perfon  who  was  to  do 
the  a£t,  being  united  in  the  fame  perfon,  it  was  dear  he 
could  not  vifit  himfelf;  his  power  as  vifitor  was  fuf- 
pended.  That  the  vifitatorial  power  might  be  cxtinft 
or  be  fufpended  was  evident  from  the  conunon  queftion 
which  viras  always  afked  on  an  application  for  a  man- 
damus in  fuch  cafes,  "  whether  there  was  a  vifitor?** 
which  could  only  be  applied  to  f\ifpenfions  or  e^^Hnguifli- 
ments  of  the  authority,  becaufe  in  all  eleempfynary 
foundations  there  muft  neceiTarily  have  been  a  vifitor 
at  the  foundation :  it  remained^  therefore,  to  be  enquire 
ed,  whether  any  body  elfe  but  the  biOiop  could  viik 
in  this  cafe;  the  King  could  not,  for  he  had  transferred 
his  whole  power  to  the  bifhop,  and  it  never  yet  bad  been 
decided,  that  on  a  temporary  fuipenfion  of  die  vifitatorial 
power, '  it  ,refulted  back  to  the  founder  or  his  heirs  ; 
and  in  this  extin&ion,.  or  fufpenfion,  there  was  no  in- 
convenience, as  recourfe  might  be  had  to  the  court  of 
King''s  Bench  (^). 

In  confequence  of  this  judgment  was  made  the  flatute 
2  G.  2,  c.  29,  which,  after  reciting  the  foundation  of 
the  college,  and  that  the  bifhop  of  Chefler,  on  account 
of  his  being  warden  of  it,  could  not  exercife  the  power 
of  a- vifitor;  and  like  wife  that  fome  doubt  had  artferiy 
whether  the  King  could  vijit  the  /aid  church  during  the 
fufpenfion  of  .the  then  bljhop  of  Chejier^s  power^i  enai^ed, 
"  that  during  fuch  time  as  the  wacdenfhip  of  Manchefler 
was  or  fhould  be  held  in  commendam  with  the  bifhopric 
of  Chefler,  the  power  of  viflting  the  Collegiate  Church 

{a)  Rex  V.  bifhop  of  Cheiler,  i  Barnard,  K.  B,  5«»    «  Str.  79S. 

war 


286  THE     LAW 

was  and  (hould  be  veiled  in  the  crov/n;  and  that  his 
Majefty,  his  heirs  and  fucceflbrs^  Kings  of  Great 
Britain,  had,  and  fbould  thereby  have  full  power  and 
authority  to  viiit  the  faid  Collegiate  Church,  ac- 
cording to  the  tenor  of  the  charter  of  its  foun- 
dation/' 

But  by  L  3,  it  was  provided,  that  if  any  dl/pute 
or  queftion  (hould  arife  concerning  the  ele£fcion  or  ad* 
miffion  erf"  any  of  the  then  prefent  members  or  officers 
of  the  college,  by  reafon  of  their  not  being  eleded  or 
admitted  within  the  time  limited  by  the  charter,  thefe 
fhould  be  determined  by  the  courfe  of  the  common 
law,  and  not  otherwife,  in  fucb  manner  as  if  no  vifi- 
tatorial  power  were  in  being. 

When  no  vifltor  has  been  appointed  by  the  foun- 
der, and  the  heirs  of  the  latter  are  extin6l,  it  has  been 
made  a  queftion,  whether  the  vifitatorial  power  de- 
volves perfonally  on  the  King,  or  belongs  to  the  court 
of  King's  Bench,  by  virtue  of  its  general  fuperintend- 
ihg  authority. 

On  an  application  to  the  court  of  King's  Bench,  in 
the  time  of  Lord  Chief  Juftice  Holt,  the  latter  is  re- 
ported to  have  faid,  **  I  take  this  to  be  altogether  a 
lay  corporation,  and  then  the  vifitation  belongs  to  the 
founder  and  his  heirs ;  and  if  he  die  without  heirs,  I 
take  it  the  vifitation  fhall  go  to  the  King;  and  this 
is  my  private  opinion"  (a) ;  and  in  fupport  of  this  opi- 
nion he  referred  to  a  cafe  in  the  year  books  in  the 
time  of  Edward  the  fourth  (h),  ' 

In  the  12th  of  G.  3,  the  feme  point  was  incidentally 
mentioned  in  the  cafe  of  the  Kifxg  and  Gregory,  which 

(a)  xft  Mod.  232. 

(^)  Simon  de  Monford*s  cafe,  5  Ed.  4,  long,  quiat.  1*3. 

was 


OF    CORPORATIONS.  287 

was  a  rule  to  fliew  caufe,  why  an  information,  in 
the  nature  of  quo  warranto,  fiiould  not  be  exhibited 
againft  the  defendant,  to  fhew  by  what  authority  he  claimed 
to  be  a  fellow  of  Trinity  Hall,  in  Cambridge:  the  appli- 
cation was  founded  on  the  circumftance  that  no  heir  of 
the  founder  was  known  to  be  alive.  In  the  courfe  of 
the  argument  fome  obje£lion$  had  been  taken  to  the 
mode  of  application,  and  it  had  been  contended,  that  the 
power  of  vifiting  devolved  to  the  King  in  Chancery,  as 
in  the  cafe  of  a  charity ;  to  which  Lord  Mansfield  anfwered, 
*'that  the  foundation  was  not  a  charity,  and  that  the 
power  of  fuperintending  it  did  not  go  to  the  King  as  vifitor  ; 
but  it  was  a  corporation,  and  therefore  the  right  devolved 
to  the  crown  to  be  exercifed  by  the  court  of  King's  Bench. 
The  cafe  of  Manchefter  College,"  he  faid,  "  was  very 
ftrongto  this  point;  for  that  there,  fo  long  as  the  fufpen- 
flon  of  the  vifitatorial  power  lafted,  it  was  the  fame  as  if 
there  had  been  no  vifitor,  and  the  King  in  this  court  pro- 
ceeded upon  this  ground.  The  flatute  of  Geo.  2,  was 
likewife  very  material ;  for  as  this  court  had  exercifed  the 
ordinary  yifitatorial  power,  that  aft  made  the  King  vifitor 
of  the  college;  but  had  provided,  that  if  any  queflion 
concerning  the  eleftion  or  admiifion  of  the  members  at 
that  time  fhould  arife,  the  decifion  (hould  be  in  this 
court"  (a). 

But  it  has  been  lately  decided,  that,  in  cafe  of  the 
failure  of  the  heirs  of  the  founder,  when  there  has  been 
no  vifitor  appointed  by  the  latter,  the  right  of  vifitation 
devolves  to  the  crown,  to  be  exercifed  by  the  Chancellor. 

A  RULE  having  been  granted,  calling  on  the  mafler 
and  fellows  of  Saint  Catherine's  Hall,  Cambridge,  to 
fliew  caufe  why  a  mandamus  (hould  not  IfTue,  command- 

(a)  Rex  V,  Gregory,  ^  T.  Rep.  140,  in  the  notes. 

ing 


2S8  THE   LAW 

U^  diem  to  declare  the  fellowfliip  of  ttie  revenetid  joftun 
Wood  v^cstnt,  and  to  proceed  to  the  de£Upn  of  another 
lellow ;  it  appealed,  that  the  cc^Iege  was  founded  by  Dr. 
Wodelarke^  who  gave  it  certain  ftatutes ;  th^it  the  fqun^ 
dation  was  confirmed  and  incorporated  by  letters  patent^ 
in  the   15th  year  of  Edward  the  fourth;  that  no  vifitor 
bad  been  appointed  by  the  founder^  and  that  his  heirs 
were  extind. — The  ground  of  the  application  was,  that 
Mr.  Wood  had  accepted  a  college  living,  which  it  was 
contended  vacated  his  fellowOiip, — The  principal  quef- 
tion  was,  '^  whether  in  this  cafe  the  vifitation  belonged 
perfonally   to   the   King,   or  to   the  court   of  King^s 
Bench?" 

Lord  Kenyon,  in  delivering  the  opinion  of  xbe  co^rl, 
obferved,  that  the*  principle  on  which  Lord  Mansfield  pro- 
ceeded in  the  cafe  of  the  King  and  Gregory,  ^nd  which 
might  not  improperly  be  introduced  in  cafes  of  this  kind, 
was  a  wifh  to  adapt  the  adminiftration  of  juftice  to  the 
convenience  of  the  parties,  not  indeed  fo  as  .to  controul 
the  law,  but  as  a  guide  in  doubtful  cafes,  where  there  was 
no  exprels  decifion  on  the  queftion.  It  was  highly  con- 
venient that  all  difputes  of  this  kind  (hould  be  decided  in 
a  domeftic  forum  ;  and  if  this  obfervation  was  entidedto 
much  weight  in  the  cafe  of  Saint  John's  College  againft 
Toddington,  it  certainly  merited  the  fame  attention  in  the 
prefent. — The  right  now  claimed,  could  not  be  faid  to 
efcheat ;  this  was  to  mifapply  the  word^  which  in  an  ap- 
propriate fenfe  belonged  to  eftates  held  by  tenure,in  which, 
on  failure  of  heirs  of  the  donee,  ^he  eflate  reversed  to  the 
donor. — But  there  were  feveral  kinds  of  property  which 
belonged  to  the  King,  when  there  was  no  other  peribn  to 
take  them  ;  as  in  the  inftance  of  all  goods,  of  which  no 
particular  owner  was  to  be  found :  there  was,  therefore, 

jnothing 


J 


OF    CORPORATIONS.  2S9 

nothing  incongruous  to'  the  genend  principles  of  law,  in 
faying  that  this  power,  which,  at  the  time  when  the  charity 
was  founded,  was  vefted  in  fomebody,  ihould  now,  when 
there  was  no  other  perfon  to  claim  it,  devolve  on  the 
King,  to  be  exercifed  as  nearly  as  poflible  in  the  manner 
in  which  it  was  exercifed  by  the  founder  and  his  heirs. 
This  power,  though  not  exprefsly  referved  to  the  King 
by  the  founder,  yet  belonged  to  him  by  operation  of 
law.--^The  great  authority  againft  this  opinion,  and  which 
weighed  mod  in  the  mind  of  the  court,  was  what  was  faid 
by  Lord  Mansfield  in  the  cafe  of  the  King  and  Gregory : 
but  of  that  it  was  fufficient  to  fay,  that  it  was  not  the 
point  in  judgment  before  the  court;  his  lordfliip's  atten- 
tion was  not  particularly.called  to  it ;  and  it  was  an  opinion 
by  which  he  would  probably  not  wifh  to  be  bound.— 
With  refpe6l  to  the  cafe  of  Manchefter  College,  and  the 
Z&.  of  parHanient  which  was  pafled  in  confequence  of  that 
determination,  the  conduflon  from  them  feemed  to  be  the 
contrary  of  that  which  had  been  drawn  from  them  \  it  had 
been  contended  by  the  counfel,  Jn  fupport  of  the  jurifdic- 
tlon  of  this  court,  that  the  laft  claufe  of  that  aA  was  at 
variance  with  the  iirft,  and  abridged  the  conftru£lioh  of  it. 
The  firft  claufe  enaded,  that  when  it  ihould  happen  that 
the  wardenfhip  of  Manchefter  College  ihould  be  held  in 
commendam  with  the  biihopric  of  Chefter,  the  power  of 
vifiting  the  college  ihould  be  vefted  in  the  crown ;  and  it 
enabled  the  King  to  vifit  it  according  to  the  charter  of 
foundation :  that  power  of  vifitation  then  muft  be  exer- 
cifed by  the  King  in  his  court  of  Chancery.— If  that 
claufe  had  ftood  alone,  it  would  not  hav€  affifted  the  argu- 
ment in  favour  of  the  prefent  application ;  becaufe  the 
court  muft  fuppofe  that  the  legiflature  intended  in  that  cafe 
to  follow  as  nearly  as  poffibje  the  courfe  of  the  common 
Vol.  IL  U  hw; 


1^0  THE    LAW 

?aw ;  and  under  that  tL&  the  King  could  not  exercife  his 
vidtatorial  poWer  in  this  court.    With  rcfpedt  to  the  latter 
claufe  controling  the.  fir  ft,  it  muft  be  obferved,  that  though 
it  provided  that  difputes  concerning  the  cleftion  of  mem- 
bers (hould  be  determinable  by  the  courfe  of  the  common 
liw,  as  if  there  were  no  vidtatorial  power  in  being,  yet 
that  regarded  only  the  cafe  of  the  then  exifling  members^ 
and  left  the  power  of  vifiting  in  other  cafes  in  the  chancellor, 
(Jautioufly  avoiding  to  ftir  the  queftion  relative  to  the  pro- 
priety of  granting  the  mandamus,  which  gave  rife  to  the  adl, 
Thefe  two  authorities,  which  had  been  urged  in  favour  of 
the  prefent  application,  being  anfwered  to  the  fatisfa£^ion  of 
the  court,  the  only  queftions  left  for  their  confideration  were 
tiie  convenience  of  the  cafe,  and  the  general  law  or;  the  fub- 
je(5t.  In  general,  corporate  bodies,  which  refpedled  the  pub- 
lic police  of  the  country,  and  the  adminiftration  of  juftice, 
were  better  regulated  under  the  fuperintendance  of  this  court 
than  that  of  the  court  of  Chancery ;  but  it  was  otherwife  in 
general  with  eleemgfynary  foundations.  What  had  been  faid 
by  Lord  Holt  fcemed  decifive  of  this  queftion ;  for  though  it 
was  only  called  his  private  opinion,  yet,  as  it  was  formed  by 
him  on  a  fubje£l  which  he  had  fo  thoroughly  confidered,  and 
as  the  general  convenience  of  the  cafe  coincided  with  it,  it  was 
entitled  to  the  greateft  weight.  "  Therefore,"  concluded  his 
lordfliip,  ^  with  no  decided  authority,  or  general  principle  of 
law  againft  us,  but  with  the  convenience  of  the  cafe  and  gene- 
ral principles  of  law  in  our  favour,  we  fhall  do  more  fub- 
^  ftantial  j  uftice  to  the  parties  in  this  particular  cafe,  and  to  the 
public  in  general,  by  refuling  to  grant  this  writ  of  mati- 
damus,  and  by  referring  this  queftion  to  the  Lord  Chan- 
cellor, than  by  entertaining  jurifdidlion  over  it"  (<?). 

(a)  Rex  V.  Maftcr,  &c.  of  St.  Catherine's  Hall,  Cambridge.   4  T. 
Rep.  233.^ 

Section 


OF    CORPORATIONS.  2^t 


Section  IL 

Of  the  Writ  of  Mnndatnuu 

A  MANDAMUS  is  defined  to  be  a  prerogative  writflow^ 
ing  from  the  King  himfelf  fitting  in  the  court-of  Ktng'» 
Bendi,  fuperintending  die  police  and  prefetring  the  peace 
of  the  coontry  {a).  The  purpofe  of  it  is  to  coiniiiand  tber 
perfon  to  whom  it  is  direded^  to  do  fofnetbing  which,  it  is 
fuppofed,  he  is  bound  by  his  duty  to  do. 
.  These  writs  are  (aid  to  be  yefy  ancient;  even  as  old 
as  the  time  of  Edward  the  firft,  if  not  older,  though  it  is 
iaid  they  were  originally  no  more  than  ktters,  and  that  for 
a  eonfiderable  time,  difobedience  of  them  was  only  a  con-> 
tempt  (h). 

TrtB  firft  judicial  writ  of  mandamus  has  been  faid  to 
teive  teen  that  in  James  Bagg*s  cafe  (c) :  but  that  is  cer- 
,  tainly  not  correA ;  for  in  the  fixth  of  Edward  the  fccond  (d) 
it  appears,  chat  a  writ  ifliied,  diredcd  to  ^he  mayor 
and  commonalty  of  Briftol,  commanding  "that,  whereas 
they  had  deprived  certain  perfons  of  the  liberty  of  the 
city,  they  flioul^  reftore  them  under  pain  of  all  that  they 
could  forfeit," 

In  the  reign  of  Henry  the  fixth,  a  writ  of  the  fame  Hnd 
wa<5  diredhd  to  the  mayor  of  London :  it  recited  that  one 
Rrohard  Anable,  of  London,  pewterer,  who  had  been 
duly  admitted  to  the  freedom  and  franchife  <if  the  city,  and 
had  long  enjoyed,  within  the  city,  the  freedom  and  privi- 

{a)  Pr.  Lord  Mansfield,  i  Bl.  Rep.  352, 

(b)  Vid.  Fortefc.  404.    i  Str.  540.    4  Bur.  2189. 

(f)  Vid.  ante,  p.  50. 

(d)  Clole  Jloll.  membr.  8.  Dyer,  381,  In  marg: 

U  a  ^        leges 


294  THE     LAW 

juftice,  in  favour  of  the  officer,  refufed  to  difmift  the  in<- 
fornutioiiy  which  prevented  the  owners  from  having  their 
brandy  returned ;  on  an  application  for  a  mandamus  to 
compel  him  to  determine  the  ntatter,  it  was  granted  (a). 

So,  the  court  granted  a  mandamus  in  the  nature  of  a 
prscedendQ  ad  judicium^  commanding  the  judge  of  the  court 
of  Sandwich,  to  give  judgment  on  a  verdict,  he  (laving 
granted  a  new  trial  for  exceffive  damages,  without  pay- 
ment of  cofts  (b). 

*  So,  it  has  been  granted  to  the  &Qrtfts  of  London,  com« 
manding  them  to  give  final  judgment  on  a  writ  of  in* 
quiry(r). 

It  has  been  granted  to  the  jufttces  of  peace,  of  the 
county  of  Chefter,  commanding  them  to  make  a  rate,  to 
reimburfe  a  fiirveyor  of  the  highways,  the  money  he  had 
expen&d  on  that  account  {d).  But  it  has  been  refufed  to 
juftices  to  make  a  rate  to  reimburfe  two  of  the  inhabitants 
their  chargea  incurred  in  defence  of  an  indiAment  for  not 
repairing  a  bridge  {e). 

If  an  overfeer  of  the  poor  difburfe  money  out  of  his  own 
pocket  for  the  relief  of  the  poor,  and  go  out  of  office  with- 
out having  reimburfed  himfelf  out  of  the  nioney  in  his 
hands,  he  cannot  afterwards  have  a  mandamus  to  com- 
pel the  fucceeding  church-wardens  and  overfeers  to  make 
a  rate  to  reimburfe  him ;  for  the  rate  mud  be  made  for 
tiie  relief  of  the  poor,  and  not  to  reimburfe  the  overfeers: 
there  is  no  neceffity  that  they  fhould  pay  money  out  of 
tiieir  pockets,  for  the  church-wardens  and  overfeers  with 

(tf)  iStr.  530,  531. 

{h)  I  Str.  113,  where  i  Vent,  1S7,  T.  Raym.  214.,  andsKeb.  8^t, 
are  cited  as  authorities  for  the  mandamut* 
(f)  Str.  392— vid.  1  Ventr.  1*7,  8. 
{d)  Haflbrs  cafe,  Str. » x  i  •  (^}  Anoa .  Str,  6  ),  ^kl.  Sir.  4%^  93 . 

the 


f. 


OF    COR  POR  ATION  S»  295 

the  concurrence  of  the  juftices  may  order  a  fum  of  money 
to  be  levied  for  the  relief  of  the  poor,  without  the  con^ 
curjence  of  the  parifh:  it  is  not  material  indeed,  whether 
the  money  be  difburfed  befote  or.  after  a  rate  made,  and  if 
they  lay  out  money  before,  they  may  reimburfe  tbemfelves 
'  out  of  the  money  levied  on  fuch  rate  (a). 

By  the  ft.  43  El.  c.  2,  f.  i,  the  overfeers  of  the  poor  arc 
to  be  nominated  under  hand  and  feal  of  two  or  more 
juftices  of  the  peace  in  the  county,  dwelling  In  or  near  the 
parifh  or  divifion  for  which  they  are  to  be  appointed* 

By  the  ft.  13  and  14  Car.  2,  c.  12.  if  the  pariih  be  too 
large  to  reap  the  benefit  of  the  fiatute  of  Queen  Elizabeth, 
overfeers  are  to  be  appointed  for  each  of  the  feparate  to  wn- 
fhips  or  villages  into  which  the  parifh  is  divided. 

If  either  in  the  cafe  of  the  parifh  at  large,  or  of  the  fepa* 
rate  townfhips  or  vills,  the  juftices  refufe  to  appoint  over- 
feers according  to  thefe  ftatutes,  they  will  be  compelled  by 
mandamus  (b). 

A  MANDAMUS  lies  to  compcl  the  church- wardens  and 
Overfeers  to  make  a  rate  for  the  maintenance  of  the  poor  ^ 
but  does  not  lie  to  compel  the  infertion  of  particular  per* 
fons  in  the  rate,  or  to  make  an  equal  rate,  becaufe  in  the 
two  latter  cafes  there  is  another  fpecific  remedy,  by  appeal 
to  thefeflions  (r). 

It  does  not  lie  to  compel  juftices  of  the  peace  to  grant 
a  licence  to  keep  an  ale-houfe,  for  it  is  difcretionary  in  the 
juftices  to  grant  it  or  not  (d). 

So,  a  mandamus  has  been  refufed  to  compel  the  church- 
wardens  and  overfeers  to  fign  a  certificate,  the  court  ob- 
ferving,  that  the  motion  was  a  very  ftrange  attempt,  on 

(a)  Tawney'?  czCc^z  Ld.  Raym.  1009,  cited  4  Bur..  1153, 1x57. 
.     (b)  Vid.  Burn'ji  Juflice,  Oveifecrs  of  the  Poor. 

(f)    2Str,  2259.  4  Bur.  2290.  {d)  1  Str.  8«x. 

*    U  4  *the 


2^6  THE    LAW 

the  ground,  I  fuppofe,  that  to  grant  or  not  to  grant  the 
certificate,  was  difcretionary  in  the  church-wardens  and 
overfeers  {a)» 

It  has  been  refufed  to  church^wardens,  commanding 
them  to  call  a  veftry  for  the  eledion  of  new  church- 
wardens; the  court  obferving,  that  there  was  no  inftance 
offucK  a  mandamus,  and  that  they^ could  not  take  notice 
who  had  a  ri^ht  to  call  the  veftry,  and  confequently  did 
not  know  to  whom  it  ihould  be  diredted  (^). 

A  MANDAMUS  lies  to  juftices  of  peace,  commanding 
them  to  make  out  a  warrant  of  diftrefs  to  levy  the  poor's 
rate  (c). 

So,  to  fwear  $in  overieer  to  the  truth  of  his  accounts  ac- 
cording to  the  ftatute  of  17  G.  z,  c.  38,  f.  i  (d). 

So,  to  appoint  furveyors  of  the  highways  out  of  a  lift 
returned  to  them  on  the  part  of  the  parifti,  according  to  the 
direAions  of  ft.  7  G.  3,  c.  42,  U  t  (e). 

3o,  to  put  in  execution  the  ftatute  of  forcible  entry  (f). 

So,  to  two  juftices  to  compel  them  to  inquire  whether 
a  parifli  ftands  in  need  of  aiEftance  from  other  parifties,  for 
the  relief  of  the  poor;  or  where  it  appears,  that  the  pariih 
is  adually  in  want  of  it^  to  compel  them  to  make  a  rate  for 
that  purpofe  (g). 

Bu.T  if  the  parifti,  which  applies  for  relief  to  country 
juftices,  be  within  the  exclufive  jurifdidion  of  a  borough, 
a  mandamus  will  not  lie,  becaufe  they  have  no  means  of 
enquiring  into  the  juftice  of  the  complaint  (A). 

It  lies  to  two  juftices  to  proceed  and  give  judgment  in  a 
(complaint  depending  before  them,  of  which  an  aft  of  par-* 
liament  gives  them  jurifdi£lion  (/}• 

(a)  Bum's  Juftice,  Ppor,  Certificate.  (b)  i  Str.  686. 

(c)  X  WiJf.  133.  (^)  »  Wilf,.xi5.  (0  4^Bur.  a45*# 

(/)  X  Barnard,  K.  B.  7»*  8».  (^)  4  Term  Rep.  7S2, 

-   lb)  Jd,  ibid.  (0  I  Wilf,  21. 

So, 


OF    CORPORATiaNS.  297 

So,  to  the  juftices  in  quarter  feffions    to  receive  ^a 
appeal  which  they  are  required  by  a£l  of  parliament  to 
receive  (^}, 
•    So,  to  hear  an  appeal  vrtiich  they  had  adjourned  (b).    ' 

So,  to  receive  and  proceed  on  a  traverfe  to  a  prefent- 
ment  made  by  a  juftice  of  peace  upon  view^  for  not  repair- 
ing a  highway'(r). 

It  lies  to  a  vifitor  to  receive  an  appeal  and  give  fome 
judgment  (df).  .        ^        -      . 

It  lies  to  commiffioners  of  excife  to  grant  a  permit, 
if  a  proper  cafe  ,be  laid  before  the  court  for  that  pur- 
pofe(^)* 

It  lies  to  the.  matter  of  a  college,  commanding  him  to 
afEx  the  corporation  feal  to  an  anfwer  of  the  fellows  to  a 
bill  in  chancery  (/). 

So,  to  the  keepers  of  the  common  feal  of  the  univerfity 
of  Cambridge,  commanding  them  to  put  it  to'the  inftru- 
ment  of  appointment  of  their  high  fteward,  purfuant  to  a 
grace  pafTed  in  fenate  {g)  • 

So,  it  lies  to  the  mayor  of  a  corporation  to  compel  him 
to  put  the  corporation  feal  to  the  certificate  of  the  ele<9:ion 
of  a  recorder,  where  by  the  conftitution  of  the  corpora- 
tion the  mayor  is  bound  to  certify  the  ele£):ion  to  the 
King  for  his  approbation  (h). 

It  lies  to  the  lord  of  a  leet  to  adminifter  the  ufual  oath 
to  a  perfon  elefted  portreeve  bf  a  town  (/ J . 

So^  m  general  it  lies  to  fwear  in  a  perfon  who  }ias  been 
elected  or  appointed   to  an  offices    as  to  fwear  in  aa 


(/?)  3Term  Rep.  150.    4.T«rm489.  (^)  SayeraSi. 

(f)  3  Bur.  1530.  (J)  Ante,  p.  281,  and  x  Bur.  567^ 

(j)  a  Term  Rep.  381.  {/)  Cowp.  377. 

(^)  3  Bur.  1648— 1653.  (^;  4  Term  Rep.  699. 

(0  a  ^Rol.  Rf  p.  8a>  85, 

ale-tatter| 


S^S  T  M  K    L  A  Mr  ' 

ale-tafter,  where  it  appears,  that  this  is  a  previous  requifite 
to  his  being  cKofen  portreeve,  yrho  is  the  returning  officer 
fgr  members  of  parliaments^).  So,  to  fwear  in  a  diredor 
of  the  amicable  aflurance  company,  which  is  a  corpora- 
tion created  by  charter  from  the  crown  (^). 

So,  'to  an  archdeacon  to  fwear  in  a  churchwarden  who 
has  been  elcSted  by  the  pariihioners  according  to  cuf- 
torn  (r).  So,  to  fwear  a  man  into  a  corporate  oiSce  to 
which  he  has  been  eledled  {d).  So,  to  the  lord  or  fteward 
of  a  manor  to  hdd  a  court  leet  to  fwear  in  a  perfon  ele6led 
mayor  of  a  borough,  according  to  the  dire&ion  of  the  fta- 
tute  1 1  G.  i,  c.  4,  f.  y(e). 

So,  it  lies  to  command  a  perfon  to  nominate  one  of 
two  perfons  prefented  to  him  when  the  perfons  prefent- 
ing  have  the  right  of  dealing  two,  between  whom  he  is 
to  choofe(y*). 

It  lies  in  favour  of  the  lord  of  a  manor,  who  claims  to 
hold  a  court  leet,  to  enforce  the  attendance  of  thofe  who 
ought  to  attend  to  make  a^jury,  and  who  have  before  re- 
fui^d,  or  negledled  fo  to  do  (g).  ' 

So,  it  lies  to  the  fteward  of  a  manor  and  the  homage  to 
compel  them  to  hold  a  court,  and  prefent  certain  con- 
veyances to  purchafers  of  burgage  tenements,  by  which 
they  were  intitled  to  be  fworn  burgefles  of  the  corporation, 
and  to  vote  for  members  of  parliament. 

The  principal  objeSion  made  to  the  awarding  of  a 

mandamus,  in  this  cafe,  was,  that  the  homage  Vere  not 

'minijiertal  hut  judicial  officers,  and  that  it  appeared  they 

had  already  exercifed  their  judgment,  and  determined  the 

(a)  iStr.6oS.        (*)  iStr.696.        (c)  iV6ntF.st5>. Comb.  417. 

(d)  Vid.  2  Bur.  798, 2  Term  Rep.  732. 

(f)  Vid.  ante,.p.  35,  ADdr.179%  (/)  Vid.  p.  176. 

conveyances 


OF    CORPORATIONS.  299 

conveyances  tendered  to  dieni  to  be  fraudulent^  and  there* 
fore  refuied  to  p«efent  them  at  the  laft  court.      Lord  Chief 
Juftice  Lee  obfenrec^  that  this  was  an  ancient  borough^ 
confiftmg  of  baiitff  and  burgefles  ;  that  die  perfons  making 
the  ai>plk:ation,  had,  as  tenants  of  die  manor,  a  right  by 
purchale  or  defcent  to  become  burgefies,  and  to  vote  for 
members  of  parliament,  and  for  the  bailiff,  who  was  the 
prefiding  officer  at  eledHons;   and  that  a  purchafer  could 
*not  exercife  this  right  of  voting  before  his  purchafe  deed 
was  prefented  by  the  homage  at  a  court,  to  be  holden  for 
that  purpofc,  before  the  lord  of  the  manor,  or  his  fteward : 
he  thought  the  homagers  were,  in  this  cafe,  tmni/teriati 
that  this  was  a  particular  authority,  lodged  in  certain  per- 
fons by  the  euftom  of  die  manor,  refpeSing  ib€  public  con^- 
tern  of  the  nation,  and  therefore  a  mandamus  muft  go  to 
the  homage  to  prefent  the  conveyances,  and  to  the  fteward 
to  hcrfd  a  court  to  admit  the  purchafers,  and  fwear  them  in 
burgefies  of  the  town  {a). 

A  MANDAMUS  was  prayed  to  the  mafter  and  war- 
dens of  the  company  of  gunmakers,  to  caufe  them  to  -^V 
give  a  proof  mark  to  J.  S.  a  freeman  of  the  company; 
without  which  he  could  not  fell  his  guns,  becaufe  neither, 
the  Queen  nor  any  other  perfon  would  buy  any  guns, 
which  had  not  that  mark.  Holt  faid,  '*  We  cannot  do 
it ;  they  afe  no  legal  eftabliftiment  {h) ;  you  muft  pe- 
tition the  Queen  to'iflue  a  quo  warranto  againft  them 
to  repeal  their  charter  for  this  mifdemeanor,  but  we 
cannot  help  you'*(^). 

.  (a)  Rex  V.  borough  of  Midhtirft,  i  Wilf.  iSj-  •  «  Bl.  Rep.  60,  6«. 
(b)  Qu.  what  he  means  by  their  bcmg  no  legal  eftablifhment  ?  bit 
fiibfequent  words  Aew,  that  they  were  a  corp9rate  company* 
(^)  %  Ld.  Raym.  929. 

It 


300  THE     LAW 

It  is  apprehended  that  at  prefent  a  mandamus  would  b^ 
granted  for  fuch  a  purpofe  without  hefitation. — The  gun- 
maker  is  intitled  to  have  the  mark  put  on  his  guns,  if  they 
be  of  the  proper  quality ;  the  company,  in  fuch  a  cafe,  are 
bound  by  the  nature  of  their  truft  to  grant  it;— and  there 
does  not  appear  to  be  any  other  adequate  fpecific  remedy 
to  the  perfon  injured  by  their  refufal. 

By  ft.  I  W.  and  M.  c.  i8,  f.  2,  commonly  called  the 
Toleration  Act,  the  juftices  of  the  peace,  at  their  general 
felons,  are  required  to  adminifter  the  oaths,  and  tender 
the  declaration  therein  mentioned  to  fiich  perfons  as  (hall 
be  willing  to  take  and  fiibfcribe  them  refpe<^ively« 

By  f.  19  of  the  fame  ftatute,  no  congregation  or  aflem- 
bly  for  religious  worfhip  ihall  be  permitted  till  the  place  of 
meeting  be  certified  to  the  bifliop  of  the  diocefe,  or  to 
the  archdeacon  of  the  archdeaconry,  or  to  the  juftices  erf" 
the  peace  at  the  general  or  quarter  fei&ons  for  the  county, 
city,  or  place  in  which  fuch  meeting  fhall  be  held,  and  re- 
giftered  in  the  biftiop  or  archdeacon's  court  refpeSively, 
or  recorded  at  the  general  or  quarter  feffions  t  and  the  re-* 
gifter  or  clerk  of  the  peace  refpe£iively  is  required  to 
regifter  the  certificate,  and  give  a  certificate  of  that  re- 
gifter. 

On  the  firft  of  thefe  claufes,  a  mandamus  has  been 
awarded  to  the  juftices  of  the  peace  to  adminifter  the  oaths 
and  tender  the  declaration  for  fubfcription  [a) ;  and  on  the 
fecond  to  the  regifter  of  a  bifliop's  court  {h\  and  to  the 
juftices  and  clerk  of  the  peace  {c)  refpeffcively,  command- 
ing them  to  regifter  the  certificate  of  a  diflenting  meeting- 
boufe. 

(^a)  6  Mod.  310,  (A)  I  Ld,  Raym.  115. 

(0  4  Bur.  1 991. 

A  MAN-* 


OF     CORPORATIONS.  3OI 

A  MANDAMUS  lies  to  compel  a  late  officer  to  deliver- 
up  the  infignia^  books,  &c»  belonging  to  the  office,  to  his 
fucceflbr. — As,  to  the  late  mayor  of  a  corporation,  com- 
manding him  to  deliver  the  infignia  to  the  new  mayor  {a)  | 
to  an  old  overfeer  of  the  poor,  to  deliver  the  books  of  the 
poors*  rate  to  the  new  overfeer  (^);  to  a  former  town 
clerk,  to  deliver  to  his  fucceflbr  the  common  feal,  books, 
papers,  and  records  of  the  corporation,  which  belong  to 
his  cuftody  {c)  j  fo,  to  the  clerk  of  a  company  who  has 
been  removed  from  his  office  {d)  j  fo,  to  any  perfon  who 
happens  to  have  the  books  of  a  corporation  in  his  pofief- 
fion  and  refufes  to  deliver  them  to  the  corporation :  thus 
it  was  awarded  to  the  executor  of  a  perfon  who  had  laid 
out  feveral  fums  on  account  of  a  borough,  the  executor 
refufmg  to  deliver  them  till  the  money  ihould  be  repaid  (e)  ; 
fo,  it  lies,  to  compel  the  perfon  who  has  the  cuftody  of 
public  books  to  produce  them  at  the  next  corporate 
meeting  (/). 

A  MANDAMUS  lies  to  the  fpiritual  court,  commanding 
them  to  grant  the  probate  of  a  will  to  the  executor  (^). 

So,  it  lies,  to  grant  adminiftration  of  the  goods  of  an 
inteftate,  when  there  is  no  doubt  of  the  inteftacy  [h) ;  but 
if  that  be  difputed,  it  will  not  be  granted  on  the  fuggeftion 
that  there  was  no  will,  or  that  if  there  was  a  will,  it  was 
improperly  obtained  j  becaufe  the  ecclefiaftical  court  is  the 
proper  judge  of  the  validity  of  the  will,  and  whatever  they 
determine  is  conclufive  at  law  (/).  So,  where  a  fuit  is  de- 
pending in  the  fpiritual  court  concerning  the  validity  of  a 

ia\  X  6tr,  537.  {b)  i  Wilf.  305.  (0  »  Bur,  1013. 

(</)  »  Str.  879.  {e)  Rex  v.  Ingram,  1  Bl.  Rep.  50. 

(/)  \  Str..  948.    1  Bainard,  235. 

(^)  R^yju.  235.    a  Rol.  Rep.  107.,    i  Venfr.  335.     Carth.  457r 
>{h)  I  JLd.  Raym.  263.  (1)  i  Ld.  Raym.  26zi    Comb.  454,   ' 

will, 


30Z  THB    LAW 

iriHy  that  is  a  ftifficiene  anfwer  t»  a  nitiidamits  cMnniaod' 
ing  them  to  grant  prolMie  to  tiie  cKttcutor  (a).  But  tht 
pendency  of  a  writ  of  apprnCbment  is  not  a  fufficient 
anfWer,  if  die  will  be  not  contefted  (^). 

If  tlie  ecxrlflfiaftkal  coitf-t  granted  admimftratkHi  to  a 
perfon  who  \sndi  die  next  of  kin,  he  who  is  the  next  of 
kin  is  intttled  to  a*  mandamus  as  a  matter  of  courfe,  when 
there  is  no  other  peHbn  in  equal  degree  to  the  inteftate, 
and  no  widow  (r) ;  and,  in  fuch  a  cafe,  a  iiiit  depending  is 
ho  anfwer  to  the  writ  (rf).  But  'when  there  is  a  widow, 
and  next  of  kin,  a  mandamus  win  not  be  granted,  com- 
manding the  fpiritual  court  to  gnmt  adminiftration  to  the 
one  or  to  the  other;  nor,  when  there  zre feveral ntxt  €f 
kin,  to  grant  it  to  one  of  them  in  particular ;  but  in  both 
thefe  cafes  the  writ  muft  be  general  to  grant  adminiftra- 
tion (/).  So,  it  does  not  lie  to  grant  adminiftration  du^ 
rante  minort  atate  to  any  particular  perfon,  becaufe  an  ad- 
miniftrator  durante  minort  atate  is  only  a  truftce  for  the 
infant,  having  no  intereft  himfelf :  the  writ  therefore  muft 
be  to  grant  fuch  adminiftration  generally  (f). 

Where  a  perfon  has  an  inchoate  right  to  the  exercife 
of  a  franchife,  a  mandamus  lies  to  compel  his  admiifion ; 
thus,  where  a  perfon  has  a  tide  to  the  freedom  of  a  corpo- 
ration by  birth  or  apprentrcefljip,  a  mandamus  lies  to  com- 
pel the  proper  perfon  to  admit  him  {g)  ;  and  if  by  the 
conftitution  of  the  corporation  fuch  admiffion  is  to  be  at  a 

{d)  I  Ld.  Raym.  %^.    Comb.  454..    Su-.  S9X.  z  Bi  Rep.  640. 
{b)  1  Bl.  640. 

(r)  4  Bur.  %295.    v  BI.  Rep.  66S. 
[d)  t,  Sir.  857.    %  Barnanf,  K.  B.  334.' 
{e)  Str.  552.    1  Bl.  Rep.  640. 
(/)  a  Str.  S92.     1  Barnard,  K.  B.  570,  425. 
(rt  Raym.  92, 93.    i  Lw.  91,    2  Sh»  154.    Andr.  i.    i  Sid.  107, 
S  Keb*  45Sy  6 59* 

corporate 


»  OF    CORPORATIONS.  ^OJ 

rorporate  meeting,   a  mandamus  will  lie  to  compel  a 
meeting  for  the  purpofe  (a). 

Wi^BRB  a  bye  taw  of  a  city,  as  of  the  city  of  JLondon, 
orders,  under  a  penalty,  that  all  who  pra&ife  a  particular 
.trade,  0)aU  take  up  their  freedom  in  the  company  of  that 
trade,  a  mandamus  lies  to  compel  that  company  to  admit 
to  the  freedom  of  it,  i  man  intitled  to  the  freedom  of  the 
city  at  large,  by  having  ferved  aniipprentkefhip  to  ooe  of 
another  company  {&). 

By  theftatute  26  G.  «>  c.  18,  any  fubje<a  of  Great 
Britain  deiiring  admiffion  into  the  Turkey  compatiy,  ihall, 
en  requeft  made  for  that  purpofe  by  himfelf  or  a^y  other 
perfon  to  the  governor  or  deputy  governor  of  the  company^ 
be  admitted  a  member  on  ,the  payment  of  20L  for  the  ufe 
of  the  company,  and  taking  the  oath  preferibed  by  the ' 
ftatute. 

Ok  this  ftatute  a  mandamus  lies  to  compel  the  governor 
or  deputy  governot  to  admit  any  perfon  defiring  it,  and 
fe^idering  the  20I.  and  offering  to  take  die  oath  (c). 

A  MANDAMUS  lics  to  Compel  an  offioer  to  execute  his 
office,  though  there  be  a  penalty  for  his  negleft  (d)* 

Where  the  thing  for  which  a  mandamus  is  requefted, 
will  be  of  no  ufe  to  the  party  applying  for  it,  the  court 
will  not  grant  it.  Thus,  they  will  not  grant  it  to  com- 
pel the  lord  of  a  manor  to  admit  a  copyholder  claiming  by 
defcenty  becaufe  he  has  as  good  a  title  without  admittance 
as  with  it,  againft  all  the  world  but  the  lord  (is). 

By  the  a<a  of  uniformity  ^/),  no  man  can  preach  as  a 
ledlurer  of  any  parilh  church  without  a  licence  from  the 

(ii)  iBur.  127.  {b)  Ante,  117—123. 

(0  Rex  V.  March,    a  Bur;  999.  (</)  B.  R.  H.  »6x.^ 

(/)  Rex  V.  Rennet.    %  Term  Rep.  1,98. 

(/}  la  and  14  Car.  t,  c.  4i  f.  19. 

bifhop. 


.^:> 


304  THE    LAW 

btfliopy  which  on  a  proper  occafion  the  biihop  is  bound  to 
grant,  and  the  court  will  compel  him  if  he  refufe,,as 
where  the  re£(or  agrees  to  grant  the  ufe  of  his  pulpit  to 
die  perfon  chofen  by  the  parifhioners  (a)  :  but  where  the 
redor  nfufes  the  ufe  of  the  pulpit,  where  there  is  no  fixed 
ftipend  for  the  le£hirer,  but  he  depends  on  the  voluntar^r 
contribution  of  the  inhabitants,  and.  where  there  is  no 
certain  immemorial  cuftom  as  to  the  ele£tion,  the  court 
\iall  not  compel  the  bifhop  to  grant  a  licence,  becaufe  it 
would  be  nugatory  without  the  ufe  of  the  pulpit  (^>. 

So,  where  the  ledlurer  is  paid  out  of  the  poors*  rates, 
and  there  is  no  immemorial  cuftom  for  the  le£lurer  to  ufe 
the  pulpit  without  the  redlor's  confent,  a  mandamus  will 
not  lie  to  compel  the  re<2or  to  certify  the  election  of  a 
ledlurer  to  the  bifhop  (c). 

But,  where  there  is  an  immemorial  cuftom  for  the  in- 
habitants to  eleft  without  confent  of  the  redlor,  the  law 
fuppofes  there  was  a  good  foundation  for  it,  and  the  court 
will,  in  fuch  a  cafe,  compel  the  bifhop  to  grant  a  licence, 
whether  the  reftor  confent  or  not ;  and  where  there  is  an 
endowment,  that  will  be  ftrong  evidence  in  fupport  of  the 
cuftom  (^}.  ^ 

Where  a  perfon  is  duly  nominated  to  a  perpetual 
curacy,  or  to  an  endowed  chapel,  and  the  bifhop  refufes 
to  grant  him  a  licence  to  preach,  a  mandamus  will  lie  ta 
compel  him  {e). 

In  the  years  1752  and  1753,  a  difpute  happened  in  the. 
cathedral  church  of  Carlifle,  about  the  negative  power  of 

{a)  Vid.  1  Term  Rep.  332. 

(A)  I  Wilf.  \%,    aStr.  1192.     1  TermRcp.  331* 

(f)  Rex  V.  Field.    4  Term  Rep.  125. 

{d)  I  Term  Rep.  333. 

(^)  Vid.  2  Bur.  104.5,  in  Rex  v.  Bleoer. 

the 


.1 


OF     CORPORATIONS.  3O1J 

the  dean  in  conferring  benefices. — The  four  prebendaries 
of  which  the  chapter  conAfts,  and  of  whom  one  is  always 
vice  dean,  unanimoufly  ele£led  and  noniinated,  under  the 
chapter  feal,  Mr.  Henry  Richardfon,  to  the  perpetual 
curacy  of  St.  Cuthbert's,  Carlifle.  The  dean  entered  a 
caveat  againft  his  admiilion,  and  the  bifhop  refufed  to 
admit  and  licence  him ;  on  which  application  was  made  to 
the  court  of  King's  Bench  for  a  mandamus  to  compel 
him.— The  court,  after  hearing  the  parties,  granted  the 
writ,  and  the  bifhop  admitted  and  licenfed  Mr.  Richard- 
fon (a)* 

But  in  thefe  cafes,  the  reafon  why  a  mandamus  lies  to 
the  biihop  commanding  him  to  grant  a  licence,  is,  that 
there  is  no  other  fpecific  remedy.— A  qugre  impedit  does 
not  lie  by  the  common  law  for  a  perpetual  curacy,  and 
the  nominee  cannot  bring  an  adion  for  money  had  and 
received  againft  a  wrongful  pofleffor,  without  a  licence; 
for  without  that  he  has  no  legal  poffeflion  {b). — But  the 
nominee  of  a  donative  may  bring  an  a£tion  for  money  had 
and  received  for  the  profits,  becaufe  he  is  in  pofleffion 
without  a  licence,  by  the  mere  nomination  (c). — So,  where 
a  perpetual  curacy  has  been. augmented  by  Queen  Anne's 
bounty,  the  title  becomes  determinable  by  virtue  of  the 
ft.  I  G.   I,  c.  10  {d)j  in  the  fame  manner  as  that  to  pre- 

fentative 

(a)  Burn^sEcclef.Xaw,  tit.  Deans  and  Chapters,  f.  4.. 

(h)  Pr.  Ld.  Mansfield,  i  Term  Rep.  401,  in  the  notes. 
.     (0  3  Wilf.   355. 

(d)  By  this  ftatute,  f.  4.,  after  reciting  that  the  late  Queen  Ann^*$ 
bounty  to  the  poor  clergy  was  intended  to  extend,  not^nly  to  parfons 
and  vicars  who  come  in  by  prefentation  or  collation,  inftituiion  and 
induftion,  but  likewiie  to  fuch  minifters  as  come  in  by  donation,  or 
are  only  ftipendlary  preachers  or  curates,  moft  of  which  are  not  cor- 
porations^  nor  have  a  legal  fucceflion,  and  therefore  are  incapable  of 

Vol.  II.  X  taking 


4 


.306  THE     LAW       ' 

fienUti  ve  benefices,  or,  in  other  words,  by  quare  imjsedit ; 
auid  therefore,  where  Acre  i$  a  croTs  nomination  to  fucfa 


taking  a  grant  or  conveyance  of  fuch  perpetual  augmentation  as  is'  in- 
tended by  the  faid  bounty ;  and  in  many  places  it  wouid  be  in  the 
power  of  the  4pnor,  impropnator>  parfoa,  or  vicar,  (o  withdiaw  the 
aHovaace  which  w«s  bcforp  paid  to  the  cujrate  or  miiuibar  fcrving  the 
curt  $  or  in  cafe  of  a  chapelry,  tl^e  iivcumtoit  of  the  n^her  church 
niij^ht  nfuie  to  employ  a  cunue  and  o^ciatc  there  himfcJf,  ayd  tal^e 
the  benefit  of  the  augmentation,  whereby  the  maintenance  of  the 
curate  would  be  funk  inilead  of  being  augmented  j  it  is  ena£ted,  that 
all  fuch  churches,  curacies,  or  chapels,  as  (hall  be  augmented  by  the 
governors  of  the  faid  bounty,  (hafi  be  from  thenceforth  perpetual  cures 
and  beneicfs,  and  the  mimfters  duly  nomi^tad  and  liceac^  thereto^ 
fhaU  be,  ia  \^w»  Mm  politic  a^td .  corponite,  aqd  have  perpetual  &c« 
cf^on,  aikd  be  c^p^ble  to  t^e  in  perpetuity  $  ?nd  the  ippr^^rs  ^r 
f^trons  of  siny  augm^ted  churches  or  4oa9tivea,  and  the  xtSt,<^  aad 
▼icars  of  t)ie  mother  churches  whereunto  fuch  augpeoted  cytracy  or 
chapel  doth  appertain,  ihaU  be  excluded  from  receiving  any  profit  by 
fuch  augmentation,  and  fhaH  pay  to  the  minillers  officiating,  iuch  an- 
nual and  other  penfions  and  ialsiries  as  by  ancient  cuftom,  or  other- 
wife  of  right  find  not  of  bounty^  they  were  befiore  obliged  to 
pay. 

And,  by  f.  6,  for  coatinnipg  the  fuccefCon  in  fuch  augmented  cures 
hei-ebymade  perpetual  cures  and  benefices,  and  that  the  fame  may  be 
duly  and  conftantly  ferved,  it  is  ena^ed,  that  in  cafe  fuch  augmentedl 
cures  be  fuffered  to  remain  void  by  the  fpace  of  fix  months,  without 
any  nomination  within  that  time  of  a  fit  perfon  to  ferve  the  fame,  by 
the  perfon  or  pcrfons  having  the  right  of  nomination  thereto,  to  the 
bifhop  or  other  ordinary,  within  that  time,  t^  be  licenced  for  that  pur- 
pofe,  the  fame  ihall  lapie  to  tKe  bifliop,  or  otfhor  ordinaiy,  and  from  him 
to  the  metropolitan,  &c.  according  to  the  courfe  of  Saw  ufeXi  in  caies 
of  preientative  livings  and  benefices,  and  the  right  of  nomination  to 
fuch  augmented  cure  may  be  granted  or  reeovsredi  and  the  incum- 
bency  thereof  may  and  fliall  ceafe  and  be  determined  in  like  manner, 
and  by  the  like  methods  as  the  prcfentation  to  or  incumbency  in  any 
vicarafpe  prefentative  may  be  now  re^pedlively  granted,  recovered,  or 
determine . 

au|;n3ented. 


OFCORPORATIONS.  307 

augmented  curacy^  a  mandamus  will  not  lie  to  compel  the 
bifhop  to  grant  a  licence. 

The  chapel  of  St.  Helen's,  fltsuated  in  tke  hamlet  of 
Hardfliaw,  in  the  pari&  of  Prefirot,  in  the  county  of  Lan«- 
cafter,  had  been  coniibcrated  from  time  immemorial,  and 
the  ufual  offices  of  the  church  had  been  conftandy  pcr- 
fonned  in  it,  and  previous  to  the  deadi  of  an  incumiaient 
in  the  year  1785,  it  had  been  twice  augmented  by  Queen 
AAne^s  boujiity«--On  the  death  of  this  incumbent  the 
right  of  appoindag  to  the  curacy  was  claimed  by  two 
feveral  parties* 

On  the  one  hand  this  right  was  daimed  by  the  vicar 
of  Preicot,   and-  on   the  other  by  certain  feoffees,  or 
truftees,  who  had  been  from  time  to  time  eleded  by  each 
other,  and  who  alleged  that  the  diapel,  the  cbapd  yard» 
and  the  grounds  belonging  to  diem,  had  been  reftcd  ia 
them  for  many  ages  paft;  a  majority  of  the  truftees,  on 
the  26th  of  December,  1785,  nominated  William  Finch 
to  be  curate  of  the  chapel,  by  a  deed  under  their  hands 
and  feals,  which  was  prefented  on  the  6th  of  May  fol« 
lowing,  to  the  chancellor  of  the  diocefe  of  Chefter,  wh^ 
was  appointed  in  the  abfence  of  the  bifbop  to  grant 
licences ;  but  the  chancellor,  and  the  biftiop,  to  whom  a 
iimilar  application  was  afterwards  made,  feverally  refufed 
to  grant  a  licence. — The  vicar,  by  a  deed  under  his  hand 
andfeal,  dated  the  jift  of  March,  1786,  appointed  John 
Barnes,  who  on  the  ift  of  April  requefted  the  chancellor 
of  the  diocefe  and  the  bifhop  to  grant  him  a  licence,  who 
feverafty  declined  it. — ^The  truftees  and  the  viCar  (everdiy 
entered  caveats  in  the  bifhop's  court  againft  each  other's 
claims. 

The  truftees  applied  for  a  mandamus  to  compel  the 
bifliop  to  licence  WiHiam  Finch,  and  m  fiipport  of  their 

X  2  application 


1 


308  THK     LAW 

application  ftated,  that  a  majority  of  the  truftees  had  con- 
ftantly  appointed  a  curate  to  officiate  in  the  chapel,  who 
had  always  received  the  profits  of  it  without  any  inftitu- 
tion  or  indu^on  from  the  ordinary  the  truftees  having 
held  it  as  a  donative  before  the  augmentation ;  and  that 
fince  that  tipe  the  curate  appointed  by  them  had  always 
applied  for  a  licence  from  the  ordinary  to  preach  and 
officiate  in  the  chapel,  and  had  obtained  it. 

In  oppoiition  to  this  application,  the  chancellor  of  the 
diocefe.  fwore  that  the  chapel  had  always  been  deemed 
fubje£l  to  the  ecdefiaftical  jurifdidion  of  the  ordinary  or 
bifhop,  and  fuggefted  that  as  it  had  been  augmented  by 
Queen  Anne's  bounty,  it  was  by  virtue  of  the  ftatute  of 
G.  I,  to  be  confidered  as  a  perpetual  cure  or  benefice, 
fubje£l  to  lapfe  as  a  prefentative  living;  that  the  right  of 
nomination  to  it  had  become  grantable  and  recoverable, 
and  the  incumbency  liable  to  be  determined  by  the  like 
niethods  as  that  of  any  vicarage  prefentative ;  and  that  the 
chapel  having  become  litigious  in  confequence  of  the 
abovementioned  claims,  the  bifhop  had  therefore  declined 
granting  a  licence. 

The  court  faid,  that  as  there  were  crofs  nominations, 
the  bifhop  was  not  bound  to  decide  which  of  the  contend- 
ing parties  had  the  better  title ;  and  if  he  did  take  upon 
himfelf  to  decide  that  queftion,  he  might  equally  be 
bound .  to  grant  a  licence  to  both ;  in  which  cafe  there 
w>ouId  be  a  conteft  for  the  pofTeffion  of  the  pulpit :  it  was 
therefore  proper  that  he  fhould  withhold  his  licence  till  the 
right  was  determined.  That  in  the  cafe  St.  Cuthbert's, 
Carlifle,  which  had  been  mentioned  as  a  cafe  in  point,  there 
had  been  no  crofs  nomination,  the  vdean  only  claiming  a 
negative ;  and  it  had  not  appeared  to  the  court  that  the 
tur^y  had  been  augmented :  there  was  a  diftindion,  there- 
there- 


OF  corporations;  309 

fore*  between  that  cafe  and  the  prefent.— It  was  not  con- 
tended  here,  that  either  party  had  not  another  remedy  to 
enforce  his  right  5  each  had  a  fpecific  remedy  by  "  quare 
impedit;"  and  as  the  foundation  of  the  application  was  that 
the  curacy  was  a  donative,  each  might  try  his  title  againft 
the  other  who  ihould  take  the  rents  and  profits,  by  an 
a^ion  for  money  had  and  -received.  The  licence,  there- 
fore, would  not  forward  the  right  of  him  to  whom  it  was 
given. 

On  thefe  principles  the  mandamus  was  refufed ;  and  as 
this  was  the  fecond  application  of  this  kind,  the  court  de- 
fired  it  to  be  underftood,  that  if  a  fimilar  one  were  made 
afterwards  on  the  fame  ground,  they  would  difcharge  the 
rule  with  cofts  (a). 

Where  the  right  of  nomination  is  in  one  perfon,  and 
that  of  prefcntation  in  another,  and  either  impedes  the 
other  in  his  right,  a  **  quare  impedit"  lies,  and  therefore 
a  mandamus  will  not  be  granted  in  favour  of  the  perfon 
nominating,  to  compel  the  other  to  prefent  the  nominee  to 
thebifliop(^). 

V  And  it  is  a  general  rule,  that  wherever  there  is  another 
adequate  fpecific  remedy,  a  mandamus  will  not  be  granted. 
Thus  where  an  aftion  of  debt  ^wa§  "brought  in  aa  inferior 
court,  in  which  the  plaintiff  was  nonfuited,  and  the  de- 
fendant had  judgment  which  the  court  refufed  to  execute  ; 
the  defendant  applied  to  the  court  of  King's  Bench  for  a 
mandamus  to  compel  them  j  but  it  was  refufed,  becaufe 
the  defendant  had  a  fpecific  remedy  by  the  vnrit  de  executione 
judicii  out  of  Chancery  (r). 

{a)  Rex  V.  biihop  of  Chefter.    1  Terra  Rep.  396. 
{b)  Rex  V.  Marquis  of  Stafford,  3  Term  Rep,  646, 
(<:)  3  Salk.  229, 

'  X  3  So, 


3IO  rut  LAW 

So,  a  mandamus  does  not  lie  to  comoMnd  tife  officer  eff 
an  inferior  court  to  do  his  duty,  becaufe  the  judge  of  the 
court  may  deprive  him  of  his  office  if  he  refiife  {a). 

So,  where  a  vifitor  has  executed  a  fentence  given  in  a 
matter  beyond  his  juriidicftion,  a  mandamus  does  not  lie 
to  command  him  to  reverie  it ;  the  proper  remedy  is  an 
adion  for  damages  by  the  party  injured  (£)• 

So,  where  there  is  a  vifitor,  a  mandamus  does  not  lie 
to  compel  the  doing  of  any  thing  which  falls  within  his 
juri(di£tion  (r). 

^o,  it  does  not  lie  to  churchwardens  to  compel  them  to 
make  a  church  rate ;  that  being  a  fubjed  purely  of  ecclefi- 
ailical  jurirdi£tion  (d).      • 

So,  it  does  not  lie  to  compel  admiffion  to  the  degree  of 
barrifter :  the  inns  of  court  are  voluntary  focieties,  which, 
for  ages,  have  fubmitted  to  government  analogous  to  that 
of  other  feminaries  of  learning :  but  all  the  power  they 
have  concerning  admiffion  to  the  bar  is  delegated  to  them 
from  the  judges,  and  in  every  inftance  their  condu£l  is 
fubje£i:  to  their  controul  as  vifitors.  The  proper  remedy, 
therefore,  for  the  perfon  aggrieved  by  dieir  refuial,  is  an 
appeal  to  the  twelve  judges  (d). 

A  MANDAMUS  will  not  be  granted  to  compel  the  Bank 
to  transfer  ftock,  becaufe  an  a£lion  of  aflumpfit  will  lie  for 
complete  fatisfa£tion  equivalent  to  a  fpecific  relief  (^}. 

(a}  Vfd.  aiftejp.  if 3.  (b)  Vid.  ante,  p.  iSi. 

(1-)  1  Sh.  74.  %  Sh.  170.  1  Keb.  »,  36,  6f ,  xoi,  »34>  *^9>  ^33* 
Raym.  31.    i  Ley.  13,  65.    i  Sid.  71.    3  Salk.  133. 

(d)  Rex  Y.  churchwardens  of  St.  Peter's,  Thetferd^  5  TcrBt 
Rep.  364. 

(d)  Doug.  354,  (340). 

(e)  Rex  V.  Bank  of  Englandy  on  the  pralecutioo  of  Parhuryy  te.. 
Doug.  526,  (508). 

Wherbver 


OF-  CORPORATIONS. 


3'* 


WmIrkver  a  quote  impidit  lies,  a  lnJM(blfliUd  does  itot 
iie,  becaufe  the  former  is  a  eemplete  (jptcific  /e]lef.-^It  k 
true  there  is  a  cafe  reported  in  Strange  {a)  and  AnAewn  (B) 
of  a  mandamus  direded  to  the  bifliofy  of  Saruiti,  coKft^ 
Mandlfi^  hhn  to  admit  one  Clarke  to  a  canonry  or  pre^ 
bend  in  the  cathedral  c^htirc^  there^  z&d  tor  inftitu^,  ind£i£{', 
and  i#Kreft  bkn  therein:  and  though  it  waaf  tttongtf 
Oppofed  on  the  f ute  to  (bew  caufe^  as  turftiilg  the  c^)i!)Mioil 
Jaw  remedy  by  qtMn  impidit  teto  another  chaiilJeT,  yet  the 
court  ordered  the  writ,  on  the  gfoimd  that  thi^  \^afs  t 
more  expeditious  and  lefs  etpc^five  remedy  tlhan  the  othfei'. 
But  as  the  parties  agreed  to  refer  the  difpttte,  ftit  writ 
never  iffued. 

This  cafe,  however,  is  not  to  be  confidered  as  an 
authority,  for  when  it  t^'sts  cited  on  a  ftrbfequeWt  occaf!on, 
Lord  Mansfield  remarked,  that*  Mr.  J,  Dennifoff.  had 
always  thought  that  cafe  tfi'rong ;  and  added  as  a  reafen, 
that  no  cafe\was  proper  for  a  mandamus,  but  Where  diere 
is  no  other  fpeeifk:  remedy  (r). 

Previous  to  tHs  cafe  of  Cbrkc,  a  mandamus  had  iffued, 
conrtnanding  the  dean  and  chapter  of  Notwicb  to  admit 
Dr.  Sherlock  to  a  prebend  of  the  Cathedral  church  there. 
The  twit  fiiggefted,  that  Queen  Anne,  by  letters  patent,  in 
the  thirteenth  year  of  her  reign,  had  incorporated  Dr. 
Sherlock,  then  nlafter  of  Catharine  Hall,  in  Cambridge, 
ai^  the  feHows  and  fcbolars  for  ever,  and  granted  diat  the 
then  maftef  (hould  fucCeed  tA  the  next  vacancy  of  a  pre- 
befid  in  Norwich,  and  his  fucceffort,  mafters  of  Catherine 
Hall  after  him ;  that  thefe  letters  patent  were  confirmed  by 
Z&.  of  parliament  (dO,  and  that  one  of  the  prebendaries  was 
now  dead :  they  returned,  that  King  Edward  the  fixth,  by 

{a)  Str.  X082.  (^)  Andr.  20. 

(0  1 1  erm  Rep.  401.  (^d)  12  Aniv.  ft.  Xj  c.  6. 

X  4  letters 


311  THE    LAW 

letters  patent,  in  the  firft  year  of  his  reign,  ereded  the 
deanery  and  chapter  of  Norwidi  into  a  corporation,  en- 
dowed the  church,  and  gave  them  perpetual  fucceffion; 
dut  neither  he,  nor  Queen  Mary,  nor  Queen  Elizabeth, 
made  any  ftatutes  for  the  government  of  the  corporation: 
but  that  King  James,  by  a  body  of  ftatutes,  ordained,  that 
as  often  as  there  ihould  be  any  vacancy,  the  dean  and  chap- 
ter ihould  admit  fuch  peribn  as  the  King  (hould  nominate 
under  the  great  fed :  but  that  none  (hould  be  admitted  to  be 
dean  or  prebendary,  who  before  was  prebendary  of  any 
other  cathedral  church  :  that  thefe  were  the  ftatutes  which 
they  had  fworn  to  obferve :  and  becaufe  Dr.  Sherlock  was 
dean  of  Chichefter  and  a  prebendary  of  St.  Paul's,  they 
could  not  admit  him. 

The  only  queftion  here  was  on  the  effe£l  of  the  local 
ftatutes  in  oppoiitlon  to  the  letters  patent,  and  their  con- 
firmation by  the  ?&  of  parliament.  The  chief  juftice  {a) 
delivered  the  opinion  of  the  court  in  favour  of  a  peremp- 
tory mandamus  to  this  effed :— That  on  the  firft  letters 
patent  of  James  the  firft,  the  power  of  the  King,  as  foun- 
der, was  reft  rained,  and  the  dean  and  chapter,  as  the  matter 
ftood  upon  thofe  ftatutes,  might  well  refiife  fuch  a  perfon 
as  Dr.  Sherlock,  as  they  might  alfo  have  done  on  the  let- 
ters patent  of  Queen  Anne,  for  that  (he  having  but  a  bare 
right  of  nomination,  could  never  unite  the  canonry  itfelf 
to  the  mafter(hip  of  Catharine  Hall.  Thofe  letters  patent 
might,  perhaps,  have  their  efieifl  as  a  perpetual  nomina- 
tion ;  but  there  was  no  occafion  to  determine  that  point 
now,  fince  there  was  an  a6l  of  parliament  which  had  con- 
firmed them,  and  by  which  the  canonry  itfelf  was  united 
to  the  mafterihip  of  Catharine  Hall,  and  it  not  being  de- 

{m)  Pratt. 

nied 


OF    CORPORATION'S*  313 

nied  that  Dr.  Sherlock  was  mafter,  he  was  in  that  charac- 
ter intitled  to  a  peremptory  mandamus  {a)* 

Here  no  obje£lion  was  taken  <o  the  mandamus  as  not 
being  proper,  on  the  principle,  that  there  waj  another  fpe- 
cific  remedy  by  "  quare  impedit :"  and,  indeed,  as  the  aft 
the  dean  and  chapter  were  commanded  to  do,  was  merely 
fuch  a  minifterial  zt\  as  they  muft  have  done,  had  Dr.  Sher- 
lock recovered  in  a  quare  impedit,  there  does  not  feem  to 
have  been  any  room  for  fuch  an  objeftion. 

By  ft.  17  G.  2,  c.  5,  intitled,  "  an  adl:  to  amend  and 
make  more  efFeftual  the  laws  relating  to  rogues,  vaga- 
bonds, and  other  idle  and  diforderly  perfons,"  it  is  en- 
adied  (3),  that  *'  in  cafe  any  petty  conftaWe,  or  other  fuch 
officer  of  any  parifh  or  place,  (hall  bring  to  any  high  or 
chief  conftable,  fuch  certificate,  as  is  defcribed  in  a  former 
part  of  the  a<Sb,  granted  by  any  juftice  or  juftices  of  the 
peace  for  the  proper  county  or  place,  afcertaining  how 
and  for  what  rates  and  allowances  he  (hall  be  required 
to  convey  any.  rogues,  vagabonds,  or  incorrigible  rogues, 
together  with  a  receipt  or  note  from  any  conftable  or  other 
officer  or  perfon  to  whom  the  perfon  or  perfons  fo  to  be 
conveyed  was  or  were  delivered,  the  high  or  chief  confta- 
ble fliall  and  may  pay  to  fuch  petty  conftable  or  other 
officer,  the  rates  or  allowances  afcertained  in  and  by  fuch 
certificate,  and  no  more,  taking  from  fuch  petty  conftable 
or  other  officer  fuch  certificate,  and  his  receipt  for  the 
feme;  and  the  faid  high  or  chief  conftable  (hall  be  allowed 
the  fame  by  the  treafurer  of  the  county,  riding,  liberty,  di- 
vifion,  corporation,  or  franchife,  on  paffing  his  accounts,, 
on  his  producing  and  delivering  up  fuch  certificate  and  re- 
ceipt, and  giving  his  own  receipt  for  the  fame  to  fuch 
treafurer,  and  the  juftices  at  the  general  or  quarter  feffions 

(^)  Vid.  a  fimilar  cafe,    x  Barnard^  K.  B.  40.  {V)  S.  x7» 

ihdl 


314  f^^    tAW 

fliaU  aHow  the  fame  to  fuch  treafurer  in  his  accounts,  on 
his  producing  and  delivering  up  die  touchers  afore&id". 

Ah  application  having  been  made  on  this  ftatute,  on 
behalf  (rf*  two  petty  conftables  of  Shafteflniiy,  where  there 
was  no  chief  conftable,  for  a  mandamus  to  the  treafefer 
of  die  county,  commanAng  him  to  reimburfe  thepettf^ 
conftaUes  the  feveral  fums  of  money  expended  by  dienl 
in  maintaining  and  conveying  fevefal  rogues,  vagabonds^ 
and  other  idle  and  diforderly  perfons  according  to  the  a£l : 
Lord  Mansfield  faid,  '^  there  is  wafte  enough  on  tfaefe  oc- 
Calions  already :  they  are  obliged  to  apply  to  the  quarter 
feffions,  and  die  furplus  only  is  to  be  paid  ovcr^  which 
(hews  that  the  feffions  have  a  jurifilidion  to  make  deduc- 
tions" (a). 

The  court  will  not  grant  a  mandamus  to  compel  the 
performance  of  any  thing  in  future,  which  had  been  vohuv- 
tarily  done  before :  therefor^  where  truftces  under  a  road 
%St  had  turned  a  road  through  an  inclofure,  and  made  the 
fences  at  their  own  expence,  and  repaired  them  far  feveral 
years,  a  mandamus  was  refufed  to  compel  dicm, to  con- 
tinue fuch  repairs,  becaufe  there  was  no  fpecial  provifioii 
in  the  aft  to  that  effedl  (b). 

With  refpeft  to  offices  or  places,  a  mandamus  may 
have  for  its  objed,  to  compel  the  eleftion  or  appointment 
of  a  perfon  to  fill  the  vacant  place  or  office,  to  compel  the 
admiilion  of  the  perfon  chofen  or  appointed,  or  to  compel 
the  reiloration  of  a  perfon  unjuftly  removed.  With  re-' 
fpeft  to  franchifes,  to  compel  the  admiffion  of  the  party 
pofleffing  an  inchoate  title  to  a  francbife,  or  the  rpfforation 
of  one  unjuftly  flisfranchifed. 


(a)  Rex.  V.  Walter  Erie,  gent.'    »  Bur.  1197. 
(3)  fox  V.  commiffionCTf  of  Llaridilo  difWff.    %  Term  ReJ).  *3«. 

A  MAN- 


0,F    CORPORATIONS.  ^15 

A  MANDAMUS  lies  commanding  the  proper  perfbna  to 
fileGt  fuch  officers  in  corporations  ^i  Ixave  a  relation  to  thd 
government  of  them,  or  to  the  adminiftration  of  public 
juftice,  and  this,  in  many  c^s,  by  the  common  law  pre^ 
vious  to  the  ftatute  of  1 1  G.  i  (a).  But  as  the  power  of 
the  court  of  King's  Bench  extends  only  to  enforce  obedi- 
ence to  the  King's  charter,  there  were  many  caifes  irt  wJiich^ 
before  that  ftatute,  they  could  not  interpofe ;  as  where  by 
the  charter  a  particular  day  was  fixed  for  the  eledion  of  a 
mayor  or  other  chief  officer,  and  no  election  Was  had  on 
fuch  a  day ;  for,  in  fuch  a  cafp,  to  have  commanded  the 
corporation  to  proceed  to  an  election  at  another  day,  W€>uU 
not  have  been  to  enforce  obedience  to  the  King's  cbartery , 
but  to  authorife  them  to  ac^  in  oppofition  tb  it  (h) :  in 
what  cafes  it  lies  ineonfequencefdf  that  ftatute  has  b^eH 
ihewn  on  a  former  occ'afion  (r). 

So,  it  lies  commanding  th<^  who  by  any  ftatute  have  the 
nomination  or  appointment  to  a  place  or  office  in  whicb 
the  public  intereft  is  concerned,  ^o  fill  it  up  when  va- 
caht« 

« 

By  the  land  tax  aA  {d)  the  receiver  genera^  on  the  re« 
cefpt  of  the  whole  aiTeiTmeAts  of  the  county,  &c.  is  to  ^low 
and  pay,  according  to  fuch  warrant  as  ihal)  be  given  m 
that  behalf  by  the  eommiffiotierS)  or  any  two  or  more  of 
tbem^  three  half-pence  in  the  pound  and  no  more  to  the 
cdmmi£|oners  clerks,  for  their  pains  in  fair  writing  the  at> 
feffinents,  duplicates  and  copies  mentioned  in  the  ad,  and 
ailwairrants,  orders,  and  inftmdions  relating  thereto;  isind 
lii^fe  clerks  are  to  b^  appointed  by  a  majority  oStbg  a^ittg 


jt- 


(a)  Vid.  .5  Mod.  275.    i  Ld.  Raym.  481. 

(f)  Vid.  ante,  p.  36—43.  (</)  15  G.  ^  c.  4« 

(h)  Bia.Ni.Pr.«ox. 


cotnmjjioners 


3l6  THE     LAW 

eommijJtQners  prtfent  at  each  refpe^ive  meeting  within  every 
hundred,  lathe,  wapentake,  rape,  ward,  or  other  divifion. 

The  commiffioners  of  the  land  tax  are,  as  fuch,  com- 
miffioners  for  the  window  and  houfe  tax. 

A  DISPUTE  having  arifen  with  refped  to  the  validity 
of  an  election  of  a  clerk  to  the  commiffioners  adting  for 
the  parUh  of  St.  Martin  in  the  fields,  in  Weftminfter,  on 
account  of  the  refpedbive  claims  of  two  candidates,  an 
ai^ion  was  tried  to  determine  which  of  the  two  was  duly 
elected,  when  the  elc6lion  of  both  was  (et  afide.  After  this 
dccifion  the  commiffioners,  at  a  meeting  which  was  con- 
vened for  the  purpofe  of  putting  the  land  tax  a£t  into  exe- 
cution, proceeded  to  the  eleftion  of  a  clerk  in  the  depart- 
ment for  the  rates  and  duties  on  houfes,  windows,  and 
lights ;  when  one  of  the  former  candidates  was  elected 
without  notice  to  the  friends  of  the  other,  that  the  eIe£tion 
was  to  be  made  on  that  day,  or  even  that  the  com- 
miffioners were  to  meet  for  any  other  purpofe,  than  that  of 
carrying  the  land  tax  a£b  into  ejFed. 

On  this  the  difappointed  candidate  applied  for  a  manda- 
mus to  be  diredled  to  the  commiffioners,  commanding  them 
to  proceed  to  the  election  of  a  clerk  in  the  department  for 
the  rates  and  duties  on  windows,  houfes,  and  lights. 

The  application  was  refilled  on  the  ground,  that  the 
office  was  nbt  of  fufficient  permanency  to  induce  the  court 
to  interpofe;  that  the  appointment  was  only  for  each 
particular  meeting  of  the  commiffioners,  who  might  ap- 
point fome  other  peribn  at  their  next  meeting ;  and  that 
where  the  commiffioners  chofe  to  continue  the  fame  perfon 
in  the  appointment,  it  was  only  a  matter  of  convenience  to 
them ;  fo  that  it  was  nugatory  to  comply  with  the  prefent 
motion,  becaufe  if  the  mandamus  ifiTued,  and  the  com- 
miffioners 


\ 


OF     C  OR  PO  R  AT  I.ONS^  317 

miffioners  obeyed  it,  the  clerk  appointed  under  it,  might 
lofe  his  office  after  the  firft  meeting. 

Lord  Mansfield  obferved,  this  writ  of  mandamus  was 
a  very  beneficial  writ ;  that  it  was  grantable,  where  there 
was  no  other  fpecific  legal  remedy  j  that  it  was  orpeculiar 
ufe  in  thofe  cafes,  where,  if  there  were  not  this  remedy,  the 
conteft  muft  be  produ(9:ive  of  endlels  mifchief  and  incon- 
venience to  the  litigating  parties ;  that  if  clerics  were  ap- 
pointed under  this  a£l  each  time  of  meeting,  there  would 
be  no  end  to  the  eleftions  5  but  that  they  received  their  al- 
lowance under  an  annual  warranty  fo  that  their  appointment 
was  at  leaft  for  a  year-^ — for  thefe  reafons  the  writ  was 
granted  {a). 

So,  a  mandamus  will  lie  to.  compel  a  dean  and  chapter 
to  fill  up  a  vacancy  among  the  prebendaries  or  canons  re- 
fidentiary,  when  by  the  conftitution  of  the  church  they 
have  the  elediion  (^). 

But,  where  an  office  does  not  concern  the  public  in- 
tereft,  but  has  been  inftituted  merely  for  the  purpofe  of 
fhew  or  ceremonious  attendance  on  a  particular  magiftrate, 
as  a  mace-bearer,  to  attend  the  mayor,  it  feems  the  court 
will  not  compel  an  appointment,  by  mandamus  [c). .  ^^^ 

To  entitle  a  party  to  a  mandamus  to  be  admitted  or  re- 
Jlored  to  a  place  or  office,  it  has  been  frequently  held,  that 
the  latter  muft  have  fome  relation  to  the  public ;  and  on  the 
ground  of  its  being  merely  a  place  of  private  fervice,  the 
writ  has  frequently  been  refufed.  Thus  where  an  application 
was  made  for  a  mandamus  to  the  company  qfgunmakers 
in  London,  commanding  them  to  reftore  one  Vaug^ian  to 

{a)  Rex  V.  commiflioners  of  the  land  tax  for  S.  Martin's,  Weft- 
minftcr,     i  Term  Rep.  146.  {b)  Vid.  ante,  p.  268,  2,70. 

(r)  Rex  V.  borough  of  Liverpool,    i  Barnard,  K.  B.  8z. 

his 


\^ 


3lt  THE    LAW 

his  place  of  approver  of  guns,  of  which  he  had  been  de- 
prived ;  the  court  (aid,  ''  this  was  a  diing  in  which  die 
pttbEc  were  no  way  concerned,  nor  was  there  any  puUic 
hw  for  it;  it  was  therefixe  out  of  the  reafon  of  a  manda- 
mus \**  but,  they  added,  ^  your  way  will  be  to  petition  the 
Queen,  and  fhe,  perhaps,  will  order  the  attorney  genersd 
to  bring  a  quo  warranto  againft  them''  {a).  But  now  the 
value  of  the  matter,  orihe  degree  of  its  importance  to  the 
puUic  police,  is  not  icrupuloufly  weiged.  If  diere  be  a 
righty  and  no  other  Jpecifii  remedy,  a  mandamus  will  not 
be  denied  (b). 

A  MANDAMUS  was  formerly  refiifed  where  an  affize 
would  lie,  on  the  principle  of  that  being  another  fpecific 
remedy  (c).  An  affile  lay  for  tenant  for  /^  of  an  office  of 
pr^t'y  as  of  the  office  of  (heriff,  where  it  was  granted  for 
life;  of  a  fteward,  bailiff,  receiver,  or  beadle  of  a  manor; 
of  a  prothonotary,  phil^ifer,  or  other  officer  for  life  in 
Chancery,  King's  Bench,  or  Common  Pleas  ;  of  offices 
in  the  Admiralty,  or  fpiritual  or  other  court;  as  well  as  in 
the  courts  of  common  law ;  as  of  the  regifter  of  the  Ad- 
miralty, or  of  a  bi(hop. — It  lay  Only  by  tenant  in  fee,  in 
tail  or  for  life,  againft  the  tenant  of  a  freehold,  or  againft  the 
tenant  and  the  diffeifor  :  but  it  did  not  lie  by  a  perfon  who 
had  a  lefs  intereft  than  for  life,  nor  of  an  office  which  had 
no  profit  annexed  to  it,  but  was  merely  an  office  of 
charge  (^).  It  has  been  faid  too,  that  it  was  only  where 
the  officer  was  appointed  by  patent  or  grant,  and  not  where 
his  title  was  by  eledion,  that  an  affize  lay  to  reftore  him 

(a)  Vaughan  v.  comply  of  gun-makers  in  London*     6  Mod.  Sz. 

(b)  Per  Ld.  Mansfield.     3  Bur.  126,  7. 

(c)  Vid.  6  Mod.  18.     3  SaHc.  231. 

(^)'Vid.  Jehu  Webb's  cafe,  S  Co.  47.      a  Inft.  312,  F.  N..  B.  177, 
A.  Com.  Dig.  Affize,  B.  a,  3, 4,  5, 6,  B:  R.  H.  100. 

if 


OF     CdRPORAf  IONS.  319 

ifunjuftly  diireUed{tf),  and  it  lay  onl^r  to  rec§^ir  an  of- 
fice, and  not  to  be  admitted  to  it :  fo  that  the  ojeAion  of 
an  affile  could  never  be  made  to  the  application  for*  a 
mandamus  to  admit. 

On  the  diftin£^ion  between  a  patent  and  other  oficer, 
perhaps  it  may  be  poffible  to  account  for  fome  feeming 
contradiAions  in  the  books.  A  mandamus  has  been  re-  ^ 
fufed  to  reftore  a  perfon  to  the  office  of  water-bailiff  of  the 
river  Severn,  becauTe,  being  a  patent  officer,  an  affile  lay 
for  it ;  but  it  has  been  granted  to  reftore  to  the  office  of 
furveyor  of  the  New  River  water  5  probably  becaufe  the 
appointment  was  by  deAion  {b). 

On  the  ground  of  being  a  prtvaU  office,  as  well  «s  that 
an  affize  lay  for  it,  if  it  was  a  freehold,  a  mandamus  was  re- 
Ibfed  in  the  time  of  Holt,  to  reftore  a  man  to  the  office  of 
clerk  to  the  butchers  company  of  London  (e) ;  but  after- 
wards, on  hearing  counfel  on  both  fides,  a  mandamus  was 
granted,  and  the  court  faid,  it  was  the  fame  cafe  with  that 
of  a  town  clerk  (i),  for  which  a  mandamus  had  often  been 
granted. 

Because  an  affize  did  not  lie  for  a  place  or  office  which 
was  not  a  freehold,  or  to  which  no  profit  was  attached,  a 
mandamus,  even  when  the  obje£kion  of  an  affize  bad  its 
effe<Sb,  wa$  frequently  granted  to  reftore  a  man  to  the  place 
of  alderman  of  a  town,  to  the  place  of  common  council- 
man of  the  city  of  London^  and  to  the  freedom  of  a  town 
of  which  he  had  been  unjuftly  deprived  (c).  The  firft  is 
a  freehold  indeed,  t}^  no  pM>fit  is  attached  to  it;  thefecond, 
is  neither  a  freehold,  nor  is  any  profit  attached  to  it;  and 
the  third  is  a  mere  privilege. 

(^}  Comb.  144.     1  Term  Rep,  4P4»      ^    (A)  Comh.  347,  348. 
(f)  6  Mod.  18.    3  SisiH^.  232.  (</)  pi  Ld.  R^yiTu  959, 1094. 

W  Palip.4.y,4j^.  Style  3V?3»i5*.^*^ 43-  VW.  chap..3»£..9> 
pr^  tofiiin. 

The 


320  THE    LAW 

The  remedy  by  affize  is  now  become  obfolete,  and 
therefore  the  queftion  whether  Ian  affize  will  lie  never 
makes  any  part  of  the  confideration,  whether  a  mandamus 
ought  to  be  granted  or  not. 

The  nature  of  the  intereft,  which  the  polleilbr  erf"  a 
place  or  office  has  in  it,  teems  now  the  principai  queRioa 
to  be  confldered  on  an  application  for  a  mandamus,  either 
for  admiffion  or  reftoration. 

It  has  been  refuied,  to  reftore  a  fui^eon  to  an  hofpital, 
on  the  ground,  probably,  of  his  having  no  permanent  in- 
tereft in  the  place  (a) :  but  it  has  been  granted  to  reftore  a 
town  clerk,  the  common  clerk  of  a  vill,  a  pariih  clerk, 
a  fexton,  a  fcavengcr  (^),-i — To  reftore  a  fchoolmafter  of 
a  grammar  fchool  of  royal  foundation  (c)» 

It  has  been  granted  to  reftore  to  the  office  ofregifterof 
a  bifhop's  court  {d)y  and  of  an  archdeacon  (e) ;  and  though 
Holt  faid  this  had  been  againft  his  will,  becaufe  an.affize 
lay  for  fuch  offices  {f)y  yet  it  is  now  eftabliflied,  that  a 
mandamus  will  lie  either  to  admit  or  to  reftore  to  fuch 
offices  (g). 

It  has  been  faid,  that  a  mandamus  lies  to  reftore  a  man 
to  the  office  of  fteward  of  a  court  leet,  but  not  to  that  of 
a  court  baron  (h).  And  Twifden  gave  as  a  reafon  for  this 
diftin£lion,  that  in  the  court  leet  the  fteward  is  judge,  but 
that  in  a  court  baron  the  fuitors  are  judges ;  but  Hale  (aid 
he  was  of  another  opinion,  for  that  the  fteward  is  judge  of 
that  part  of  the  court  which  concerns  the  copyhold,  and 
regifter  of  the  other  (/ j  ;   and  in  odier  places  a  diftin<5lion 

(a)  Vld.  Comb.  41.  [b)  i  Ventr,  14,3,  153,  Comb.  419. 

Styl.  458.     I  Str.  59>  115*     3  Bur.  1267.    2  Term  Rep.  181. 
(c)  I  Str.  58.  (d)  Comb.  264.  (e)  Carth.  170. 

(y)  6  Mod.  18.  jSvi\k.  231,  (g)  Str.  897. 

(h)  Rayra.  i4,  Sid.  40,  Comb.  127.  *(/)*  i  Ventr.  153. 

>  •  •  » 

is 


or   CORPORATIONft.  32! 

IS  made  between  the  cafe  of  a  fteward  of  a  court  baron 
who  has  a  patent  for  life,  and  one  who  has  not,  a  manda- 
mus lying  in  the  one  cafe  and  not  in  the  other  (a). 

It  has  been  often  doubted,  whether  a  mandamus  lies  tp 
jreftore  an  attorney  of  an  inferior  court;  butatlaft  deter- 
mined that  it  doeSf  becaufe  he  cannot  have  an  affize,  and 
though  he  might  have  datnages  for  the  unjuft  removal,  yet 
that  cannot  be  a  fufficient  recom pence  for  depriving  hini 
of  his  livelihood  {^).  Yet  it  has  been  refufed  to  reftore  a 
proi^or  of  the  fpiritual  court,  on  the  ground  that  the  office 
is  private^  and  that  the  fpiritual  courts  have  a  power  over 
their  own  officers  (^}.  The  propriety  of  this  diftindlipn 
between  the  cafes  of  the  attorney  and  the .  pro<5lor,  may, 
however,  well  be  doubted ;  as  the  attorney  is  no  more  a 
public  officer  than  the  pro£lor^  and  he  is  equally  under  the 
correAion  of  his  own  court. 

A  MANDAMUS  has  been  awarded  to  the  dean  and  chap- 
ter of  Weftminfter,  commanding  them  to  admit  a  man  to 
the  office  of  high  bailiff  (^).  So,  it  lies  to  the  juftices  of 
the  peace  to  reftore  a  man  to  the  office  of  clerJt  of  the 
peace  {/)* 

A  MANDAMUS  was  granted  to  the  court  of  aldermen  In 
London,  commanding  them  to  reftore  two  perfonstothe 
•office  of  yeomen  of  the  wood  wharf,  on  an  affidavit,  that 
it  was  an  ancient  office  and  a  freehold  (/). 

Or?  an  application  for  a  mandamus  to  be  directed  to  the 
mayor  and  aldc'rmen  of  the  city  of  London,  commanding 
them  to  reftore  one  Smith  to  the  office  of  clerk  or  (urveyor 

(a)  I  Sid.  40, 169^    2  Lev.  t8»    Fitzg.  194. 
Ih)  Vid.  I  Sid.  94, 152.    1  Lev.  75.    i  Keb.  349, 549,Raym.  $6*  S7- 
(r)  "Skin.  19(1,  Slu  217, 120, 251, 261.      3  Lev.  309.  .  3  Mod.  332. 
J  Ventr.  331. 

id)  Comb.  244.  j(^)  Comb-  317.    2  Ld.  Raym- 126«. 

if)  2  Str.  832* 

VOL.II.  Y  of 


3:2  THB    LAW 

of  the  city  works,  it  was  flated,  that  this  was  an  ancient 
and  public  office,  with  fees  and  profits  belonging  to  it,  that 
Smith  had  purchafed  it  for  600I.  and  had  been  appointed 
quaindiufe  bene  gfjferity  that  he  was  fworn  into  the  office 
by  a  particular  oath  appointed  for  that  purpofe,  and  had 
alfo  taken  the  oaths  to  government.  The  application  was 
oppofed,  on  the  ground,  that  the  office  was  of  a  private  na« 
ture,  from  which  the  party  might  be  removed  for  mifte- 
haviour ;  that  an  application  had  been  made  for  a  manda- 
mus, in  the  year  1658,  to  reftore  to  this  very  office;  and 
the  court  had  refufed  the  writ,  becaufe  this  did  not  appear 
to  be  z  public  office  {a) ;  that  this  was  not  like  the  cafe  of 
the  yeoman  of  the  wood  wharf,  as  that  was  an  appoint- 
ment under  feveral  a<Sls  of  parliament;  and  that  in  the  pre- 
fent  cafe  a  mandamus  ought  not  to  be  granted,  becaufe  the 
party  might  have  an  affize  or  an  action  on  the  cafe. 

The  court  were  of  opinion,  that  though  from  fome  of 
the  circumftances  this  appeared  to  be  like  a  private  office, 
yet  as  the  affidavits  which  dated  it  to  be  a  public  one, 
were  not  denied,  a  mandamus  ought  to  be  granted,  that 
they  might  be  the  better  able  to  judge  on  the  return. 
They  obferved,  likewife,  that  fince  Holt's  time,  this  writ 
had  been  granted  for  offices  of  much  lefs  confequence  than 
the  prefent  {b). 

On  an  application  for  a  mandamus  to  be  diredled  to  the 
mayor,  aldermen,  and  common  council  of  London,  com- 
manding them  to  reftore  one  Roberts  to  the  office  of  clerk 
or  comptroller  of  the  Bridge  Houfe  eftates ;  it  appeared, 
from  affidavits,  that  this  was  an  ancient  office  held  quamiiu 
fe  bene  gejferit^  in  the  difpofal  of  the  common  council ;  that 
the  duty  of  it  was  to  fuperintend  and  take  care  of  certain 

{a)  z  Sid.  1x2.. 

{b)  1  Barnard,  K.  B.  398.    2  Term  Rep.  182  n* 

cftatc^j 


1 


■ 


OP   corp6ra'ti ONs.  323 

cftates,  which  were  appropriated  by  the  corporation  to  the 
fupport  and  repair  of  London-bridge,  and  of  which  fomc 
had  been  granted  to  them  exprefsly  for  that  purpofe ;  and 
that  Roberts  had  been  admitted  and  fworn  into  this  officef, 
in  1749)  on  paying  4060!.  to  his  predecefibr,  and  600I.  for 
an  ah'enation  fine. 

The  court  at  firft  doubted,  whether  this  office  was  of 
fuch  a  nature,  that  a  mandamus  would  lie  for  it,  under  an 
idea,  that  it  had  been  refufed  in  the  fcavenger's  cafe;  but 
on  further  confideration,  and  being  apprized,  that  it  had 
been  granted  in  that  cafe,  they  were  ^f  opinion,  that  it 
would  lie  in  the  prefent  (a)^ 

A  MANDAMUS  does  not  lie  to  reftore  a  deputy,  in  the 
name  of  the  deputy  himfelf,  becaufe  he  is  generally  re- 
movable at  will  (h)j  that  is,  removable  at  the  wHl  of  his 
principal ;  yet  it  lies  at  the  fuit  of  the  principal,  to  thofe 
who  have  removed  the  deputy,  for  otherwife  he  might,  by 
the  a<9:  of  third  parties,  be  deprived  of  his  right  to  make  a 
deputy;  and  when,  to  fuch  a  writ,  it  was  returned,  that 
at  the  time  of  the  writ  delivered,  the  perfon  ;of  whofe  re- 
moval the  complaint  was  made,  was  not  a  deputy  ap- 
pointed ;  this  was  held  infufficient,  and  a  peremptory  writ 
was  awarded,  on  the  ground,  that  his  not  being  a  deputy 
appointed,  might  be  owing  to  the  expulfion  of  him  from 
his  place  by  thofe,  to  whom  the  writ  was  direiled  (c). 
And  the  authority  of  this  cafe  was  afterwards  fully  recog- 
nized in  that  of  the  King  againft  Dr.  Ward,  of  which  the 
circumftances  were  thefe. 

A  MANDAMUS  was  dircQcd  to  the  defjndant,  com- 
manding him  to  admit  Henry  Dryden  to  be  deputy  re- 
gifter  of  the  court  of  the  archbifhop  of  York.     It  fuggefted, 

(a)  Rex  V.  mayor,  Sec.  of  London,  2  Term  Rep.  177. 
(6>)  2  Keb.  741,  3.    I  Sh*  253,        (r)  i  Lev.  307.    i  Vcntr.  no* 

'      Y  2  that 


324  THE     LAW 

that  Dr.  Thomas  Sharps  had  been  admitted  to  the  office,  tQ 
execute  it  by  himfelf  or  his  deputy ;  that  he  had  appointed 
Drydcn,  who  was  averred  to  be  a  fit  perfoii,  to  be  his  de- 
puty ;  and  that  the  defendant,  as  commifEuy,  had  refufed 
to  admit  him. 

•  To  this  the  defendant  made  a  return,  which  was  held  in- 
fufficient ;  and  then,  among  other  exceptions,  taken  to  the 
writ,  it  was  contended,  that  it  would  not  lie  for  a  deputy  i 
to  which  it  was  anfwered,  that  this  was  not  a  mandamus 
for  the  deputy  himfelf,  but  for  the  principal  to  be  admitted 
to  have  a  deputy;  that  the  refufal  was  fuggefled  to  be  to 
the  damage  of  Dr.  Sharpe,  who  appeared  to  have  a  freehold 
in  the  office,  though  his  deputy  was  but  at  will ;  and  the 
cafe  immediately  preceding  was  relied  on  as  an  authority 
in  point.  The  court  held,  that  the  writ  lay  in  this  cafe, 
and  therefore  awarded  a  peremptory  one  (a). 

It  has  been  doubted,  whether  if  an  officer  be  only  fuf" 
pended  from  his  office,  he  can  have  a  mandamus  to  be  re- 
ftored.  In  the  cafe  of  the  King  againft  the  approved  men 
of  Guildford,  the  court  refufed  to  grant  a  mandamus  to  re- 
ftore  Mills,  one  of  the  approved  men  who  had  been  fiif- 
pended,  faying,  that  if  injured  he  might  have  an  aftion  on 
the  cafe,  but  that  as  he  had  not  been  totally  removed,  a 
mandamus  would  not  lie,  becaufe  the  freehold  flill  re- 
mained in  him.  Twifden  was,  however,  of  a  different 
opinion,  and  in  the  following  year  a  mandamus  was 
granted  on  the  apj^lication  of  the  fame  perfon  to  reftore 
liim  to  the  fame  office ;  but  it  does  not  appear,  from  the 
reports,  whether  he  had  not  been  abfolutely  removed  in  the 
intermediate  time  (^)* 

(^a)  Rexv.  Ward.aStr.  893.     x  Barnapd.K. 3. 252^294, 380,411, 
{b)  I  Keb. 868, 880.    2  Kcb.  x.    x Lev.  162,  Raym.  152.    2Tc*'ra 
K«p.  179* 

A  MAN- 


OF    CORPORATIONS.  325 

A  MANDAMUS  gives  ijo  right,  not  even  a  right  ofpoffef- 
Jion^  but  puts  a  man  in  poffeflion  to  enable  him  to  ajfert  his 
right,  which,  in  feme  cafes  he  could  not  do  without  it  j  and 
his  pofleffioii  may  afterwards  be  difputed  by  every  man 
who  has  a  right,  {a).  But  a  diftinftion  has  been  made  be- 
tween a  legal  and  an  aSiual  pofleiHon,  and  it  has  been  faid, 
that  where  the  party  applying  has  the  former,  the  writ  can 
give  him  no  more,  and  he  muft  obtain  the  latter  as  he 
can. 

Robert  Dowgate  had  been  legally  inftituted  and  /»- 
dueled  to  a  prebend  or  canonry  in  the  cathedral  church  of 
Dublin ;  but.  becaufe  he  refufed  to  take  an  oath,  which  he 
was  required  to  do  in  confequence  of  a  bye  law,  the  dean 
and  chapter  refufed  to  admit  him  to  his  ftall  in  the  choir  and 
voice  in  the  chapter ;  on  which  he  obtained  a  mandamus 
from  the  cpurt  of  King's  Bench  in  Ireland,  coitimanding 
them  to  admit  him  5  they  made  a  return  which  was  adjudged 
infufficient,  on  which  a  peremptory  mandamus  was  award- 
ed :  the  dean  and  chapter  brought  a  writ-  of  error  in  the 
King's  Bench  in  England  \  on  which  one  queftion  was, 
whether  in  this  cafe  a  mandamus  lay :  on  this  point  the  chief 
juftice  (^)  exprefled  himfelf  to  this  purpofe— "  a  manda- 
mus to  admit  a  perfon  to  an  office  is  only  to  give  him  a 
/f^^/ pofleffion  ;^  and  if  he  has  that  already,  the  court  will 
go  no  further,  but  leave  him  to  obtain  ^7<f7«f7/ pofleffion  as 
he  can :  this  is  the  reafon-  why  the  court  grants  a  manda- 
mus  to  be  fworn  into  ail  office,  for  the  party  till  he  is 
fwornin  has  no /<?^^/pofleflion,  and  confequently  is  with- 
out remedy :  and  the  reafon  why,  in  the  cafe  of  a  manda- 
mus to  admit,  they  do  not  meddle  with  thetf/f7Wpofleffion, 
is,  that  when  they  have  given  him  a  legal  one,  he  is  by 

'  (a)  8Mod.  334.    I  Str.  541, 543.   Rex  v.  Dr.  Harris,  3  BUr.  J4»x. 
(A)  Pratt,  . 

Y  3  law 


326  T  HB    t  A  W 

law  as  much  intitled  to  every  right  belonging  to  the  office, 
as  if  he  bad  the  aSiual  poflefEon,  and  may  maintain  that 
right  without  the  affiftance  of  the  court,  even  againft  one 
yiho  is  in  pofleifion  of  the  ofiice.  If  when  there  is  al- 
ready a  legal  pofTeffion,  the  court  were  to  interpofe  fur- 
ther, the  confequences  might  be  mifchievous  ;  there  may 
be  two  peribns  who  both  claim  a  title  to  the  fame  office, 
and  each  have  an  equal  right  to  the  affiftance  of  the  courts 
a  mandamus  is  granted  to  each  of  them  to  be  admitted  ^ 
the  writs  are  executed  on  behalf  of  both ;  what  are  they  to 
do  when  they  come  together  ?  they  muft  have  recourfe  to 
open  violence,  and  thus  the  court  become  the  means  of 
breaking  the  peace,  which  it  is  their  duty  to  preferve.— — 
In  the  prefent  cafe  the  party  has  been  indudled,  which 
gives  him  a  legal  pofleffion,  and  that  is  fuf&cient:  this  is 
not  like  the  cafe  of  Dr.  Sherlocl^  for  that  was  founded  on 
an  a£l  of  parliament,  which  faid,  ''he  ihould  haveafiall 
and  voice,  and  till  that  was  affigned  he  was  not  in  legal 
pofleffion  of  the  prebend.** 

Eyre,  Juftice,  faid,  he  thought  the  mandamus  proper; 
*'  it  was  to  admit  a  man  to  the  exercife  of  his  office ;  and 
if  a  common  councilman,  after  being  fworn  in,  (hould  b^ 
refufed  admiffion  into  the  council  room,  be  might  have  a 
writ  for  that  purpofe;  he  took  Dr.  Sherlock's  cafe  to  be. 
the  fame  with  this,  for  he  was  prebendary  by  virtue  of  the 
a6l  of  parliament,  without  any  further  ceremony,  and, 
had  the  fame  right  to  his  feat  and  voice  as  this  man  had ; 
and  if  a  mandamus  would  not  lie,  he  did  not  fee  what, 
other  remedy  he  had  to  get  into  his  ftall,  unlefs  it  werf, 
byforce^'* 

On  a  fecond  argument,  it  vvas  again  infifted,  that  the 
party  was  in  /^r^/ pofleffion  of  the  office,  and  that  there- 
fore he  had  all  that  the  writ  could  give  him;    to  which  it 


OF     CORPORATIONS.  327 

was  aufwercd,  that  it  appeared  Dowgate  had  a  riglit  to  a 
flail,  and  in  confequence  of  that,  he  muft  have  a  remedy 
to  obtain  it:  it  was  not  pretended  that  a  quare  impedit 
would  lie,  nor  could  he  bring  an  affize,  as  he  had  the  office 
already,  and  that  for  which  he  was  contending  was  only 
a^ privilege  annexed  to  it;  h& could  not  have  an  ejedhnent, 
as  it  was  not  a  thing  of  which  the  fceriff  could  give  pof- 
feffion,  nor  would  an  a£Hdn  on  the  cafe  arifwer  his  pur-' 
pofe,  becaufe  in  that  he  could  not  recover  his  ftall,  but 
only  damages  for  being  kept  out  of  poffcfSon :  it  feemed 
^ftrange,  that  he  fhould  be  confidered  -as  being  already  in 
poiifeiSon  of  every  thing  the  writ  could  give  him,  when  it 
appeared,  by  the. writ  and  return,  that  though  he  was 
archdeacon,  yet  he  had  no  kind  of  pofTeilion  of  this  partt« 
eular  franchife  {a). 

The  cafe  was  afterwards  determined  on.  another  pointy 
and  therefore  no  direficonclufion  can  be  drawn,  as  to  this 
gueftioni  but  the  reafonof  the  thing  feems  to  be  in  favour 
of  the  mandaoius ;  and  in  fad  the  cafe  itfelf  is  feveral  times 
cited  in  fuch  a  mannor  as  to  (hew,  that  thofe  who  cite  i^ 
confider  it  in  that  light  {^). 

Where  a  perfon,  by  virtue  of  a  nomination,  the  riglH 
to  which  is  difputed,  has  b^n  once  in  poUeffion  of  an 
office^  and  afterwards  difppflefled  by  violence,  the  oourd 
will  grant  a  mandamus  to  reftore  hiaw 

The  chapel  of  C^ton,  in  the  parifli  of  Matfield,  \v^ 
StafFord&ire^  is  a  donative  endowed  with  lands ;  the  in-' 
habitants  of  four  dilSsrent  pari&es  contribute  to  the  re-  - 
pair  of  iti  and  the  curate  ha^  a  ftipend :  on  a  npmination 
by  the  vicar,  who  fwore  he  belieVBd  he  had  the  right  Of  no- 
rainatio%Mr.  Langley  had  been  eleven  weeks  in  pofleffion, 

{a)  Rex  V.  dean  and  chapter  of  Dublin,  i  Str.  536. 
{^)  Vid.  2  Str,  S95,     Afldr.  ap. 

Y  4  when 


328  THE      LAW 

when  one  Samuel  Blooer,  a  parifhieoer  ef  Matfidd,  zod 
an  inhabitant  of  the  chapelry^  turned  him  out  of  the  cha- 
pel and  locked  it  up.^—An  application  for  a  mandamus  t» 
reftore  Mr.  Langle  j  was  oppofed  on  affidavits^  in  Whick 
the  deponents  (wore  they  believed  that  the  rig^t  of  nomi^ 
nation  was  in  the  inhabitants. 
Thb  court  propofed  to  the  parties  to  try  the  merits  in 

"  a  feigned  iiTue  9.  but  this  was  declined  on  the  part  of  filooer^ 
who  iniifted  on  taking  the  opinion  of  die  courts  ^  whe« 
ther  the  rule  ought  not  to  be  dlicharged*" 

Lord  Mansfield  then  (aid^  *'  diis  is  a  mere  Umporat 
queftion*  Three  ob>B£tions  have  been  offered  againft 
making  the  rule  ^ifolute..  Firft,  That  there  is  nofuf- 
fudeskt  ground  fox  afldng  a  mandamus  i  to  which  the  anfwer 

.  i9y  that  this  chaplain  has  fhewn  an  appointment  and  a 
Ucence,  and  that  he  vras  in  quiet  poileffion  for  eleven 
weeks.  Secondly,  That  he  has  not  the  right ;  for  diat  the 
nomination  was  not  in  the  vicar,  but  in  the  inhabitants  i 
to  which  the  anfwer  is,  that  we  cannot  try  the  merits 
upon  affidal^its;.  hi^  claims  2,  right  though  it  be.litigatedy 
and  that  b  fuffieient  for  the  prefent  purpofe.  Thirdly^ 
That  even  fuppofing  him  to  havtf  a  titl^  and  to-  have  been 
in  pofTeffion,  and  turned  out  of  it;,  yet  he  ought  not  to 
be  affifted  by  way  of  mandamus,  but  bekft  to  his  ordinary 
legal  remedy  by  eje^imenty  or  an  a£lion  of  trefpais. — ^To- 
this  the  anfwer  is,  that  a  mandamus  to  re/brevi  the  true  fpe- 
cific  remedy,  where  a  perfbn  is-  wrongfully  diipofieifed  of 
any  office  or  fum^ion  which  draws  after  it^emporal  rights,. 
in  all  cafes  in  which  the  eftabliflied  eourfe  of  law  has  not 
provided  zfpecific  remedy  by  another  form  of  proceeding  ; 
which  is  the  cafe  with  reftories  and  vicarages.— ^Here  arc 
lands  annexed  to  this  chapel,  which  belong  to  the  chaplain 
in  refped  of  his  fundtion.  If  .the  bifhop  had  refuied  with- 
X  '  out 


OF    CORPORATION'S.  329 

out  caufe,  to  licenfe  him,  he  might  have  had  a  mandamus 
to  compel  him  (a).  He  is  now  turned  out  of  the  chapd 
and  every  thing  belonging  to  it  by  force.  Such  chapels 
wer^  not  objeds  of  attention  in  the  days  when  the  regifter 
was  formed,  and,  therefore,  there  is  no  particular  remedy 
provided  for  this  cafe. 

'^  It  is  laid,  he  may  bring  an  eje£lm,ent  or -an  adlion  of 
trefpafs.  I  am  not  fure  that  he  can,  it  does  not  appear 
that  the  legal  property  is  in  him;  on  the  contrary  it  is 
certain  that  it  is  n^.  It  might  originally  be  in  feoffees : 
thofe  feoiFees  may  not  ha^e  been  regularly  continued :  it 
may  be  impoffible  to  find  the  heir  of  the  furvivor :  jf  they 
have  been  continued,  the  prefent  feoffees  may  refufe  to  let 
Mr.  Langley  make  ufe  of  their  names :  nor  would  either 
of  thefe  a£kions,  if  he  could  bring  them,  be  a  fpecific 
remedy :  in  the  one  he  might  recover  damages ;  in  the 
other  be  might  recover  the  land ;  but  by  neither  would  he 
be  reftored  to  his  pulpit,  and  quieted  in  the  exercife  of  his 
function.  We  may  very  well  take  notice  too,  that  the 
inhabitants  refufe  to  try  the  merits  in  an  iffue.  We  fhall 
fee  what  return  they  will  make  to  a  mandamus*  This  is 
the  courfe  which  ought  to  be  adopted  in  the  prefent 
cafe"(^}.  .  . 

Where  there  is  a  difputed  ele<5Hon,  the  court  will 
grant  a  mandamus  to  admit  the  perfon  who  ieems  to  have 
the  beft  right,  ^even  though  the  oppofite  party  be 
a<3ually  in  pofleffion  >  provided  there  be  no  pther  fpecific 
remedy. 

One  Charles  Vinfon  made  a  deed  of  releafe  to  John 
Enty,  a  diflenting  minifter  at  Plymouth,  and  other  truftees, 

{a)  This  muil  be  on  the  fuppoHtlon  that  a  licence  was  necejfary  j  but 
this  chapel  being  ftated  to  be  a  donative,  no  licence  was  neceflarjr.  -. 
(A)  Rex  V.  Blooer,  z  Bur.  104-3^  cited  x  Bl.  Rep.  300." 

fettling 


330  THI     LAW 

ftttliag  a  meeting  houle  tben  newly  built^  a  garden,  5a% 
on  the  laid  truftees,  in  trutty  among  other  things,  ^  to  fuT- 
fer  the  meeting  houie  to  be  for  the  public  worfliip  of  God» 
by  inch  congregation  of  protefiant  diffenters,  commonly 
called  prelbyterians,  as  fliould  fit  mider  and  attend  the 
miniftry  of  the  faid  Mr.  John  Enty,  orfuch  other  preiby- 
terian  mxnifter  or  minifters  as  fliould  in  his  and  their  room 
fiicceffively,  in  all  times  then  coming,  be  iy  the^  members 
infeUhvfilp  of  the  (aid  or  fiich  like  congregation  or  con- 
gregations, regularly  and  fairly  chofen  and  appointed  to  be 
the  minifter,  preacher,  or  paftor,  to  preach  in  the  fkid 
meeting." 

The  place  of  minifter  of  this  meeting  being  vacant^ 
Mr.  Mends  and  Mr.  Hanmer  were  candidates  ;  the  former 
was  fupported  by  the  majority  of  the  congregation,  and 
the  latter  by  the  truftees,  who  put  their  candidate  into 
pofleffionion  the  behalf  of  Mr.  Mends,  therefore,  an 
application  was  made  for  a  rule  calling  on  the  truftees  to 
flhew  caufe,  ''  why  a  mandamus  fliould  not  iiTue  dire<3ed 
to  them,  commanding  them  to  admit  Mr.  Mends  to  die 
life,  of  the  pulpit  as  paftor,  minifter,  or  preacher  of  the 
(aid  congregation,  heliaving  been  duly  AtObsi  diereto." 

In  fupport  of  the  application  the  cafe  of  Blooer  was 
mentioned ;  and  Lord  Mansfield  took  that  opportunity  of 
declaring,  that  the  court  had  thought  of  that  cafe  fioce  the 
determination  of  it^  and  were  thoroughly  fatisfied  with  the 
principles  on  which  the  mandamus  had  been  granted^-^ 
The  prefent  was  not  indeed  exafUy  fimilar  to  that  cafe; 
but  it  was.reafonable  to  grant  a  rule  to  fliew  caufe. 

On  fliewing  caufe,  it  appeared  there  was  no  colour  for 
the  eledion  of  Hanmer,  and  that  that  of  Mends  was  liable 
to  obje£lions  :  but  the  truftees  wifhed  to  maintain  Hanmer 
with  a  high  hand  s  and  as  they  thought  their  ftrength  lay 

in 


■ 

I 


or    CORPORATIONS.  33I 

in  throwing  -obftacles  in  the  way  of  any  redrefs,  more 
efpecially  a  fpeedy  one,  their  counfel  with  great  earneft- 
nefs  and  ability  argued  againft  making  the  rule  abfolute 
for  a  mandamus,  and  contended  that  it  could  not  be  ^^  to 
admit/'  where  another  was  in  pofleiEon:  in  jRipport  of 
which  they  adverted  to  the  diflin^on  made  in  the  caie  of 
the  dean  and  chapter  of  Dublin,  between  a  mandamus  to 
ildmit  and  a  mandamus  to  reftore,  ^^  that  the  former  Was 
only  to  give  a  legal  not  an  a^al  poflieffion :  though  in  a 
mandamus  to  reftore,  th^  court  would  go  fiirther."— Here 
fiiere  was  another  perfon  in  poflieffion,  which  Mr.  Mends 
had  never  be<^n. — Lord  Mansfield,  after  explaining  the 
principles  on  which  the  writ  was  ufually  granted,  obferved 
that  the  deed  was  the  foundation  and  endowment  of  the 
paftorihip ;  the  form  of  the  inflrument  was  neceflarily  by 
way  of  truft ;  for  the  meeting  houie  and  the  land  on  which 
it  flood,  could  not  be  limited  to  Enty  and  his  fucceir<H^ 
Many  ledhirefliips  and  other  offices  were  endowed  by  truil: 
deeds.  The  right  to  the  fundlion  was  the  fubflance,  and 
drew  after  it  every  thing  elfe  as  appurtenant  to  it.  The 
power  of  the  truftees  was  merely  in  the  nature  of  an  au- 
thority to  admit*  The  ufe  of  the  meeting  houfe  and  pulpit 
ih  this  cafe  followed,  by  necefTary  confequence,  the  right 
to  the  &n6lion  of  minifter,  preachei^  or  paflor,  as  much 
as  the  injignia  the  office  of  a  mayor,  or  the  cuftody  of  the 
books  that  of  a  town  clerk* 

The  court  propofed  an  ifllie  to  try,  **  whether  Mr. 
Hanmer  was  or  was  not  duly  eie^Eled,"  as  the  cheapeft  aitd    ' 
beft  way  of  determining  the  difpute. 

Th£  truilees  knew  that  the  ele£lion  of  Hanmer  could 
not  be  fupported  on  a  trial ;  that  of  Mr.  Mends  feemed 
liable  to  objection  as  irregular;  but,  if  the  matter  were 
pr4fptr  for  a  mandamus,  they  were  aware,  that  in  cafe 

neither 


332  THE     LAW 

neither  were  eleAed,  the  court  would  iflliea  mandamus 
^'  to  proceed  to  an  eledion ;"  in  which  cafe,  as  the  ma- 
jority of  the  congregation  were  inclined  to  Mends^  they 
had  no  hope  to  fupport  Hannier :  they  therefore  obftinately 
perfifted  in  oppofing  a  mandamus,  and  refufing  a  trial. 

Lord  Mansfield  then  (aid—"  Every  reafon  concurs 
here  for  granting  a  mandamus :  wb  have  confidered  the 
matter  fully,  and  we  are  all  clearly  for  granting  it. — Here 
is  a  fundlion  with  emoluments,  and  no  ipeciiic  legal 
remedy.  The  right  depends  on  eleSion,  which  interefts  all 
the  voters,  and  the  queftion  is  of  a  nature  to  inflame  men's 
paffions.  The  refufal  to  try  the  ele£lion  in  a  feigned  iflue 
or  proceed  to  a  new  eIe£lion,  proves  a  determined  purpofe 
of  violence :  ihould  we  refufe  this  remedy,  the  congrega- 
tion.may  be  tempted  to  refill  violence  by  force :  a  difpute 
"  who**  fhall  preach  chriftian  charity,  may  raife  implacable 
feuds  and  animofities,  in  breach  of  the  public  pe^ce,  to 
the  reproach  of  government,  and  the  fcandal  of  religion. 
To  deny  this  writ,  would  be  putting  proteftant  diflenters, 
and  their  religious  worfliip,  out  of  the  proteilion  of  the 
law.  This  cafe  is  intitled  to  that  protection,  and  cannot 
have  it  in  any  other  mode  than  by  means  of  this  writ." 

The  writ  was  accordingly  ifTued,  and  the  defendant 
made  a  return  to  it ;  but  afterwards  the  parties  concerned 
went  to  a  new  eledlion,  and  the  return  being  abandoned  by 
cdnfent,  a  peremptory  mandamus  was  awarded  (fl). 

Where,  in  the  cafe  of  a  difpiited  eledlion,  of  which 
the  merits  are  doubtful,  one  candidate  has  got  pofleffion 
of  the  office,  and  the  other  has  another  method  of  im- 
peaching his  title,  the  court  will  not  grant  a  mandamus  to 
admit  the  latter,  till  he  has  had  recourfe  to  that  method 

(a)  Rex  V.  Barker,  3  Bur.   1265,   1379,   i3go,     i  Bl.  Rep. 

300,  352. 

With 


OF    CORPORATIONS.  333 

with  fucccfs— as  in  the  cafe  of  corporation  offices,  where 
the  title  of  the  candidate  in  poffellion  may  be  tried  by  quo 
warranto  (/?). 

But  where  the  ele£tioa  of  the  perfon  in  pofTeffion  has 
been  merely  colourable,  and  it  would  be  wafte  of  time  and 
expence  to  try  his  title  formally,  the  court  will  immedi- 
ately  grant  the  mandamus  in  favour  of  the  other  party  {b)^ 

An  application  was  made  for  a  mandamus  to  be  directed 
to  certain  perfons  who  were  truftees  of  a  diflenting  meet- 
ing houfe  at  Bradford,  Wilts,  to  reftore  John  Lloyd  to 
the  office  of  minifter  of  the  congregation,  and  to  the  ufc 
of  the  pulpit.  The  application  was  founded  on  the  affi- 
davits of  Lloyd  himfelf,  and  of  Jotham  one  of  the  truftees, 
which  ftated  that  Lloyd^  in  July,  1787,  received  an  invi- 
tation from  twenty-feven  perfons  of  this  meeting  on  be- 
half of  the  whole  congregation,  to  accept  tTie  office  of 
minifter,  in  confequence  of  which  he  procured  his  dif- 
miffion  from  another  q^eeting  of  the  fame  fedl  in  Devon- 
fhire,  and  in  December  following  publicly  addrefled  the 
congregation  at  Bradford,  fignifying  his  acceptance  of  the 
office  ;  that  he  had  continued  to  officiate  there  as  minifter 
from  that  time  till  November,  1789,  when  he  received  a 
paper  from  fome  part  of  the  congregation,  purporting  to  be' 
a  difmiflal  of  him ;  that  fince  that  time  the  doors  had  been 
{hutagainft  him;  and  that  he  had  been  prevented  from 
performing  the  func9ions  of  his  miniftry,  although  he  had 
offered  to  anfwer  any  charges  that  could  be  brought  againft 
him.  They  further  ftated,  that  there  was  an  endowment 
for  the  minifter  for  the  time  beipg,  and  that  the  defendants 
were  truftees  for  receiving  the  rents  and  profits.  Lloyd 
^further  depofed,  that  when  he  took  upon  him  the  office  of' 

{a)  Rex  V.  mayor  of  Colchcfler,  1  Term  Rep.  259;  the  cafe  of 
Grimwood  and  Smithies.  {h)  Vid.  ante>  p.  4s. 

minifter. 


334  ^"^5  i-AW 

minifter,  he  conceived  that  die  congregation  could  no^ 
remove  him  without  his  confent,  unlcfs  he  ihould  mifbe^ 
have  himfelf,  and  that  the  appointment  was-for  hfc,  and 
that  fuch  was  the  underftanding  of  other  di&nting  mini- 
fters  of  the  fame  communion. 

This  application  was  oppofed,  on  affidavits  which 
ftated,  that  Lloyd  had  conduced  himfelf  with  great  im* 
propriety  and  profanenefs,  and  had  made  his  pulpit  the 
vehicle  of  perfonal  flandcr  on  many  of  the  congregation^ 
in  confequence  <rf  which  a  fpecial  meeting  was  held,  when 
fifty rfivtf  of  the  congregation,  which  in  the  whole  con* 
lifted  of  lefs  than  one  hundred  members,  agreed  on  his 
difmiflal,  which  was  Signified  to  him  accordingly;  they 
ftated,  that  forty-three  years  before  the  prefcntoccafion, 
a  minifter  had  been  difmiflcd  from  this  meeting  houfe  for 
immoral  conduct ;  that  Lloyd  had  not  obtained  a  proper 
licence  as  required  by  the  z&.  of  parliament ;  and  that 
amongft  that  fe£k,  it  was  held  to  be  abfolutely  neceflary, 
after  a  minifter  had  been  chofen,  that  he  fliould  be  ordained 
by  the  minifters  of  the  baptift  church,  who  meet  once  a 
year  for  that  and  other  purpofes ;  but  that  Lloyd,  after  hi^ 
eIe£Uon,  had  never  complied  with  this  form. 

Lord  Kekyon  faid,  it  was  neceflary  that  a  party  api- 
plying  for  a  mandamus  to  be  reftored  to  any  office,  fliould 
make  out  a  prima  facie  title  to  it,  and  fliew  at  leaft  that  he 
had  complied  with  all  the  forms  neceilary  toconftitute  his 
right;  but  here  it  did  not  appear  that  the  party  applying 
had  gone  through  all  thofe  ceremonies  which  the  particul^ 
left  of  which  he  was  a  member  had  made  neceflary. 

Mr.  Juftice  BuUer,  alluding  to  the  cafe  of  the  King 
and  Barker  (a)y  which  had  been  cited  as  an  authority  in 
favour  of  the  application,  obferved,  that  that  was  the  cafe 

(a)  Ante,  p,  3a9— 332. 

of 


1 


OF    CORPORATIONS.    .  335 

of  a. mandamus  to  admit;  and  faid  that  there  was  a  great 
diiFerence  between  that  and  a  mandamus  to  reftore ;  that 
the  formed  was  granted  merely  to  enable  the  party  to  try 
his  right,  without  which  he  would  be  left  without  legal 
remedy ;  but  that  the  court  had  always  looked  much  more 
Jirl5lly  to  the  right  of  the  party  applying  for  a  mandamus 
to  be  rejlored  :  that  in  ihefe  CdS&s^  he  mufl:  fhew  a  ^r/;n4 
facie  title ;  for  that  if  he  had  been  before  regularly  admitted, 
he  might  try  his  right  by  bringing  an  adlion  for  money  had 
and  received  for  the  profits"  {a). 

Here  is  evidently  a  diftinftioh  expreffed  between  the 
cafe  of  a  mandamus  to  be  admitted,  and  a  mandamus  to 
be  rejlored:  *'  that  in  the  former,  the  party  applying  for 
the  writ  is  not  obliged  to  fliew  a  prima  facie  title;  but  that 
in  the  latter  he  muft :"  but  this  I  apprehend  muft  be  taken 
with  a  confiderable  degree  of  qualification.  The  diftinc- 
tion  is  founded  on  the  fuppofition,  that,  in  the  firft  cafe, 
the  party  applying  for  the  writ  has  no  other  method  of. 
trying  his  right,  but  that  in  the  latter  he  has.  It  cannot^ 
therefore,  apply  to  thofe  cafes,  where  the  party  applying 
to  be  reftored  has  no  other  method  of  bringing  his  right  to 
atrial;  this  is  the  cafe  with  a  freeman  of  a  corporation 
who  has  been  disfranchifed,  an  alderman  or  a  common 
councilman  who  has  been  removed  from  his'  office. — la 
thefe  there  are  no  profits  to  be  recovered,  and,  therefore, 
the  party  cannot  try  his  title  in  an  adlion  for  money  had 
and  received,  nor  has  he  any  other  remedy ;  if  then,  a 
man  may  have  a  mandamus  to  be  admitted  to  the  freedom 
of  a  corporation,  or  to  the  office  of  a  common  council- 
man or  alderman,  without  fhewing  a  prima  facie  title,  he 
may  alfo,  notwithftanding  this  diftincftion,  without  fhewr 
ing  z prima  facie  title,  have  a  mandamus  to  be  reftored: 

{a)  Rex  V.  Jotham  et  ar,  3  Term  Rep.  575. 

bat 


336  THE     tAVr 

but  it  is  apprehended,  that  in  ii// cafes,  both  of  a  manda* 
mus  to  admit  and  of  a  mandamus  to  rejlore^  the  party  ap- 
plying for  the  writ  muft  fhcw  a  prima  facie  title  [a)  j  his 
right  may  indeed  be  contefted^  but  it  muft  at  leaft  appear 
not  Improbable  that  he  will  fucceed  in  ejiahlijhing  it.  Had 
Lloyd  applied  for  a  mandamus  to  be  admitted^  and  laid  no 
better  cafe  before  the  court  than  he  did  here  on  his  applica- 
tion for  a  mandamus  to  be  reftored,  it  is  probable  the' writ 
would  have  been  refufed* — Indeed  if  any  diftin£lion  is  to 
be  admitted  between  the.  two  cafes,  it  would  feem  to  be 
rather  the  other  way.  In  the  cafe  of  Blooer  before  men- 
tioned {b\  it  was  given  as  one  principal  reafon  for  granting 
the  mandamus  to  reftore,  that  the  party  had  been  in  pof 
feffton  for  eleven  weeks,  and  there  can  be  no  doubt  that  he 
might  have  tried  his  right  in  an  action  for  money' had  and 
received,  for  the  profits. — In  the  cafe  of  corporation  officers 
we  have  feen-(^),  that  it  is  no  anfwer  to  a  mandamus  tq 
rejlore^  that  the  party  applying  for  the  writ  wanted  the 
proper  qualifications  for  being  eledled;  but  this  would 
unqueftionably  be  an  anfwer  to  a  mandamus  to  admits 

Where  an  a£l:  of  parliament  enjoins  a  perfoftholding 
a  particular  place  or  oiEce,  within  a  limited  time  to  do 
fome  particular  thing,  and.  In  default  of  his  doing  it,  de«> 
clares  his  phce  or  office  void ;  if,  in  fuch  a  cafe,  there  be 
no  other  mode  of  proceeding  againft  him  for  difobedience, 
a  mandamus  will  lie  commanding  the'proper  perfon  to  re- 
move him;  Thus,  in  the  cafe  of  the  fellows  of  Saint 
John's  College,  in  Cambridge,  before  mentioned  [d)j  who 
who  had  omitted  to  take  the  oaths  prefcribed  by  the  flatu^e 

(tf)  Vid.  Rex  V.  Cpllege  of  PhyficianJ,    5  Bur.  2740.    Rex  r, 
mayor,  &c:  of  London,  i  Term  Rep.  423. 
{b)  Ante,  p.  327  et  feq,  (f)  Ante»  p.  6*,  et  vid.  Say.  40. 

(<0  Ante,  p.  276. 

'  \    of 


OF    C0RP0RATI0K9.  337 

of  Williapi  and  Mary  within  the  time  limited,  the  court 
faid,  that  they  h.id  no  doubt  but  a  mandamus  lay  in  fome 
ihape,  and  was  the,  proper  remedy  for  the  cafe  5  though  * 
they  refufed  to  iffue  a  peremptory  writ,  becaufe  the  fellows, , 
whofe  removal  was  the  objeS  of  the  application, .  had  not 
been  made  parties  to  the*iirft  writ  (o). 

Where  it  is  confeffed^zt  a  man  has  been  r/^A/i^*  re-  - 
moved  from  an  office,  the  court  will  not  grant  him  a  man- 
damus to  be  feftored,  though  he  had  no  notice  to  appear 
and  defend  himfelf,  becaufe  the  iriftant  he  was  reftored 
they  miglit  remove  him  again  {b). 

The  writ  muft  command  the  perfon  to  whom  it  is  di- 
reAed,  in  general  terms,  to  do  that  which  appears  to  be 
his  duty ;  it  muft  not  command  him  to  execute  it  in  zpar^ 
iicular  manner; — Thus,  where '  a  mandamus  was  granted 
to  choofe  a  capita]  bargefs,  and  an  application  was  made 
to  the  court  that  a  day  might  be  fixed  for  the  ele£lion,  or 
that  fix  days  notice  might  be  given  of  the  day :  they  faid 
they  would  give  no  directions,  as  they  could  no^  alter  the 
conftitution  of  the  borough  (r). 

So,  when  an  application  was  made  for  a  mandamus  to 
churchwardens  and  overfcers,  direding  them  to  ihfert^ur- 

« 

ticulgr  perfons  in  the  poor's  rate,  on  Affidavits  of  their 
fufficiency,  and  of  their  having  been  left  out  to  prevent 
their  having  votes  for  parliament  men ;  the  c;ourt  refufed 

{a)  Vid.  3  Salic.  230.  Skin.  393,  397,  54.6,  549.  "  In  thi»  cafe  a 
quo  warranto  would  not  have  lain /becaufe  the  college  is  an  eleemofy- 
nary  foundation ;  but  it  would  lie  in  the  cafe  of  corporation  officers 
who  ihould  negle^l)  &c.  and  therefore  a  mandamus  would  not  be  the 
proper  remedy. 

(J))  Rex  V.  mayor,  &c.  of  Axbridge,  Cowp.  523.  Rex  v.  mayor 
of  London,  a  Term  Rep*  177.  .     , 

(0  Cafe  of  the  borough  of  Evefliam.    %  Str«  949. 

Vol.  II.  Z  it. 


33?  T  M  E     L  A  W 

it,  faying  they  never  went  further  than  to  compel  the 
making  of  a  rate,  without  meddling  with  the  queftion, 
who  was  to  be  inferted  or  omitted ;  of  which  the  parifh 
officers  were  the  proper  judges,  fubject  to  an  appeal  to  the 
feffions  (a)^ 

On  the  fame  principle,  they  will  not  grant  a  mandamus, 
commanding  the  perfon  to  whom  it  is  directed  to  grant 
adminiftration  durante  minori  atate  to  any  particular  per- 
fon {b) :  nor,  where  there  are  feveral  next  of  kin,  or 
where  there  are  a  widow  and  next  of  kin,  to  grant  admi- 
niftration to  one  rather  than  to  the  other :  becaufe,  in  thefe 
cafes,  the  officer  to  whom  the  writ  is  dire£led  has  an 
option  (c). 

So,  a  mandamus  directed  to  the  lord  of  a  leet,  in  pur- 
fuance  of  the  ftatute  of  ii  G.  i,  c.  4,  f.  3,  commanding 
him  to  hold  a  court  Icet  and  fummon  a  jury  to  ele<%  a 
mayor,  ipuft  not  command  him  to  fummon  particular 
jurors,  but  muft  leave  him  at  liberty  to  fummon  what 
jurors  he  pleafes  W).   . 

In  the  city  of  London,  before  the  flatuteof  11  G.  i, 
c.  18,  which  regulated  the  eleflions  there,  it  was  the  cuf-. 
torn  on  a  vacancy  in  the  office  of  alderman,  for  the  lord 
mayor  to  hold  a  wardmote  for  the  eleftion  of  a  new  alder- 
man, at  which  all  the  freemen  [e)  of  the  ward  were  intitled 
to  vote  for  two  aldermen  and  two  common  councilmen,  - 
whom  the  lord  mayor  returned  to  the  court  of  aldermen, 


(tf)  Rex  V.  churchwardens  of  Wcobly,  2  Str,  1259.  Ante,  p.  295. 
(h)  Smitirs  cafe,  22  Str,  892,    Ante,  p.  302. 
(f)  Ante,  p.  302.         "^      • 

(d[)  Rex  V.  Bankes,  3  Bur.  1452.     i  Bl.  Rep.  452,    Ante,  p.  42. 
{e)  Qu.  Whether' they  muft 'not  liavc  been  houfekeepers,  or  had 
fome  other  qualification  ? 

and 


OF    CORPORATIONS,  33Q 

and  that  court  iriominated  one  out  of  the  four  to  be  alder- 
man of  that  ward  (tf). 

On  an  eleaion  for  Broad-ftreet  ward  (^},  Sir  Gilbert 
Heathcot,  who  was  then  lord  mayor,  returned- to  the  courf 
of  aldermen  Sir  J.  Houblon,  Lethillier,  Conyers,  and  Sir 
G.  Newland :  an  application  was  then  made  to  the  court 
of  King's  Bench  for  a  mandamus  addrefled  to  the  lord 
mayor,  commanding  him  to  return  Sir  William  Withers 
and  Lewin,  aldermen,  and  Sir  George  NewJand  and  Sir 
Robert  Bunkley,  commoners. 

In  anfwer  to  the  application  it  was  obferved,  that  there 
ought  not  to  be  a  mandamus  to  return  particular  perfons 
by  name,  any  more  than  there  ought  to  be  to  make  a  par- 
ticular rate";  that  the  court  might  as  well  direft  "  whom" 
the  wardmote  fhould  ele6l,  as  "  whom'*  the  lord  mayor 
fliould  return ;  that  no  fuch  writ  had  ever  been  granted  ; 
though  it  had  indeed  been  granted,  that  the  lord  mayor 
fliould  make  a  return,' or  fliew  caufe  to  the  contrary,  but 
not  to  return  particular  perfons :  befides,  as  there  was  a 
return  already  made  of  four  particular  perfons,   if  that 
were  a  felfe  return,  an  aftion  would  lie  for'  it;  that  if  he 
ihould  make  a  contrary  return,  that  would  of  his  own 
(hewing  falfify  his  former  return,  and  render  him  liable  to 
an  aftion  both  ways ;    that  if  he  obeyed  the  writ,   ah 
aftion  would  lie  for  a  falfe  return,  though  he  -made  it  in 
obedience  to  the  writ,  and  the  command  of  this  court  wa^ 
no  defence  to  him,  becaufe  the  writ  was  not  grounded  on 
the  merits  of  the  cafe,  but  merely  on  the'  fuggeftion  of 
the  party:  he  was  liable  to  two  actions  if  he  obeyed  the 


(/i)  This  feems  to  have  been  introduced  by  an  aft  of  coinmon 
^council  in  3  H.  4.  By  the  ancient  conflitution  one  only  waa  to  be  re- 
turned to  the  court  of  aldermen. 

(*)  In  the  loth  of  Anne, 

Zz  ,    writ, 


j^O  TUK     LAW 

writ,  one  on  the  return  to  the  mandamus,  and  the  other  on- 
that  to  the  court  of  aldermen,  and  the  one  could  not  be 
pleaded  in  bar  to  the  other :  he  was  not  concerned  in  in- 
tereft,  but  was  only  a  minijierial  officer  to  colled  the  votes 
and  declare  which  four  had  the  majority;  he  Mra& bound 
by  his  oath  not  to  return  above  four  perfons  f  but  now  h^ 
was  to  be  compelled,  contrary  to  his  oath  and  the  duty  of 
his  office,  to  return  eight :  the  court  of  alderpien  was  a 
court  of  record,  which  had  authority  to  examine  the  re- 
turn made  to  them,  and  re}e£l  it  if  it  was  irregular ;  they 
were  not  confined  to  the  return,  but  were  to  choofe  one 
out  of  the  perfons  chofen,.  and  not  out  of  thofe  returned 
and  not  chofen  (^7}.  The  lord  mayor  made  the  return  as 
prefidlng  officer,  and  the  court  of  aldermen  might  inquire 
about  the  perfons  eleded  and  returned  before  they  chofe 
one ;  there  were  many  inilances  of  the  court  of  aldermen 
having  rejected  returns;  th^y  had  rejected  the  fame  perfon 
three  times  fucceffively ;  and  where  the  return  had  been 
of  five  inftead  of  four,  or  of  three  inftead  of  four,  they 
had  fet  afide  the  whole  return,  and  ordered  a  new  eleftion : 
if  eight  were  returned,'  it  was  aHced,  which  of  them  muft 
the  court  of  aldermen  choofe  ?  They  could  not  choofe  out 
of  both  the  returns ;  they  muft  choofe  out  of  one ;  and  if 
the  two  were  contradictory,  which  were  they  to  prefer  ? 
If  they  were  not  to  be  conCdered  as  contradiSory,  they 
muft  be  taken  as  one  only,  and  then  that  confifting  of 
mor^e  than  the  proper  number,  made  this  cafe  exa6Uy 
fimilar  to  that,  in  which  the  court  of  aldermen  had  given 
redrefs. — On  thefe  principles  the  writ  was  refufed  (^). 


C^)  Oil*  '^^^  accuracy  of  this  rcafoniiig, 

{b)  Reg.  V.  Sir  Gilbert  Htathcot,  lord  mayor  of  London,  Fortelc. 

183-295, 


Where 


OF    CORPORATIONS.  34^ 

i'  Where  feveraF  perfons  have  thefarme  intereft  in  having 

-'  the  thing^done  for  whi<R  a  mandamus  will  lie,  they  may 

£'  all  be  joined  in  the  fame  writ  J  as  vrhefe  two  church  war- 

c  -  dens  are  by  cuftom  chofen  by  the  parifhioners,  and  they 

ic  apply  to  the  official  to  be  fworn  into  the  office,  and  he  i^- 

r  fufes  to  fwear  them,  they  may  have  a  joint  mandamus  to 

;  conipelhira  (^7). 

I  So,  where  proteftant  diflentersj.conforming  to  the  adt  (^\ 

api^ly  to  the  proper  officer  to  have  the  certificate  regiftered, 
i  and  he  refufes,  feveral  may  join  in  their  application  for  a 

;  fnandamus  to  compel  him  (c) . 

5  B0T  where  theinterefts  of' feyeral  are  diftinS,  and  the 

,  "aiTertion  of  their  rights  may  depend  on  different  circum^. 
;  ftances,  they  ^cannot  join  in  one  mandamus ;  thus  feveral 

f  perfons  cannot  join  in  one  mandamus  to  be  admitted  to 

i  the  freedom  of  a  corporation,  or  to  be  admitted  or  reftored 

to  an  office ;   becaufe  the  right  br  the  eleftion  of  one  is  not 
J  the  right  6r  the  eleftion  of  the  others,  nor  the  amotion  of 

one  the  amotion  of  the  others^  and  the  grounds  of  refufal 

or  of  amotion  may  be  different  in  the  cafes  of  the  different 

perfons  (/:/). 
But  a  mandamus  may  be  granted  in  general  terms, 

commanding  the  mayor,  or  other  proper  officer^  to  fum- 

mon  an  aflepbly  and  do  the  bufinels  of  the  corporation. 

A  rule  for  fuch  a  writ  was  granted  on  motion  in  the  cafe 

of  the  mayor  of  Kingfton  upon  Hull;  but,  in  drawing 
.  wp  the  writ,  it  was  made  out  for  an  aflembly,  and  to 

admit  ^11  perfons  having  a  right  to  their  fc-eedom  who 

•  {a)  1  Ld.  Raym.  l^y,    Churchwardens  of  Chelfea  v.  Dr.  Bramp^ 

fton,  cited  from  3  Lev.  362. 

(*)  iWm.andM.  ft.  x,  c.  iS.  (c)  iLd.Raym.  125. 

'(d)  Vid;  5«Mod«  10.    »Salk,  433,  436.    3  Salk.  230.'  Comb,^ 
a*4>  J07. 

Z  3  '  fliould 


34^  THE     t  AW 

fhould  appear  afid  demand  It.  On  this  a  motion  was 
made  to  fuperfede  the  writ,  on  the  principle  that  every 
perfon  had  a  diflin£l  right,  and  it  would  be  too  much  to  . 
oblige  the  mayor  to  muke  a  return,  that  he  had  admitted 
all  who  had  a  right.  The  court  faid,  the  writ  muft  be 
fuperfeded,  for  that  they  had  never  intended  to  grant  fuch 
a  complicated  mandamus  as  this  (a). 

Where  one  ad  is  dependent  on  another,  a  mandamus 
may  command  both  to  be  done.  Thus  where  it  was  fug- 
gefted  in  the  writ,  that,  by  the  conftitution  of  Abing4on, 
the  commonalty  ought  to  eleift  two  out  of  the  capital 
burgefles  to  be  mayor  for  the  enfuing  year,  and  that  the 
mayor,  bailiffs,  and  capital  burgefles  ought  to  elefibone 
of  them,  and  that  two  had  in  fdSt  been  elected  by  the 
commonalty :  and  the  mayor,  bailiffs,  and  all  the  capital 
burgefles,  except  thefe  two,  were  commanded  to  appoint^ 
one  of  them  to  be  mayor,  and  the  mayor  to  fwear  in  the 
perfon  appointed:  this  was  held  good,  becaufe  the  elec- 
tion and  the  fwearing  in  were  afts  depending  on  one  ano- 
ther (^). 

So,  a  mandamus  lies  commanding  the  lord  of  a  manor 
to  hold  a  court  baron,  and  to  the  homage  to  prefent  cer- 
tain    conveyances    of  burgage    tenures,  on  an  affidavit- 
that  at  a  former  court  the  homage  had  refufed  to  prefent 
"  them  (c).  - 

So,  it  lies  to  the  lord  or  his  fteward  to  hold  a  court 
leet,  to  the  bailiff  to  fummon  a  jury,  to  the  fteward  to 
fwear  the  jury  fo  fummoned  and  returned,  that  they  niay 
proceed  to  the  ele6tion  of  a  mayor,  and  do  every  a£l:  ne- 
ceflary  to  be  done  by  them  reJpeSihely  for  that  ip\xr^ok  {d). 

(a)  Rex  V.  mayor  of  Kingfton  upon  Hull,  i  Str.  578. 

{b)  Rex  V.  mayor,  &c.^of  Abingdoi^,  i  Ld.  Raym.  559,  561, 

{c)  I  Bl.  Rep.  60, 6a.  Vid.  ante,  p.  2^8.     {d)  Vid.  ante,  p.  40,  41. 

In 


OP    CORPORATIONS. 


343 


In  foine  cafes,  the  court  will  grant  a  mandamus  on  mo- 
tion without  a  rule  to  fliew  caufe.  Thus,  where,, on  a 
motion  for  a  mandamus  to  juftices  of.  peace  to  allow  a 
poor's  rate,  it  appeared,  that  the  rate  was  regularly  made, 
and  that  the  defendants  had  refufed  to  allow  it,  the  court, 
on  a  little  confider.ation,  made  the  rule  abfolute  in  the  firft 
inftance,  obfcrving,  that  ifwas  not  proper  to  make  a  rule 
to  fhew  caufe,  in  this  cafe,  becaufe  while  the  rule  was  de-^ 
pending  the  poor  might  fufFer,  no  overfcer  being  obliged  to 
difburfe  money,  till  he  had  a  ra,te  for  colleding  it  {a). 

So,  where,  on  a  motion  for  a  mandamus,  for  proceeding 
to  theelcftion  of  a  mayor  of  the  borough  of  Heydon,  it  ap- 
peared, that  there  had  been  no  electron  on  the  day  ap- 
pointed by  charter,  nor  on  the  day  after,  and  that  the 
office  of  mayor  was  vacant ;  Mr.  J.  Denifon,  in  the  ab- 
fence  of  the  chief  juftice(^),  obferved  it  had  been  generally 
the  pra£Uce  in  cafes  like  the  prefenjt)  to  make  a  rule  to 
fhew  caufe,  but  that  the  court  were  of  opinion  it  was  not 
neceflary ;  and  therefore  the  rule  was  made  abfolute  in  the 

firft  inftance  (0- 

And  a  diftinftion  has  been  fuggefted  between  the  cafe  of 

a  mandamus  to  fwear  or  to  admit,  and  a  mandamus  to  , 
reftqre,  it  being  obferved,  that  in  the  firft  cafe^  if  the  right 
of  the  party  appear  plain  the  court  will  probably  grant  the 
writ  on  the.  firft  motion  \  but  in  the  latter,  they  will  firft 
grant  a  rule  to  fhew  caufe  ((i). 

And,  in  general,  I  believe,  efpecially  in  cafes  which' 
have  not  frequently  occurred  before,  it  is  the  practice  to 
grant  only  a  rule  to  fhew  caufe :  and  this  rule  muft  always 
be  made  on  the  fame  perfons  to  whom  the  writ  is  directed; 


{a)  Rex  V.  juftices  of  Berkfhire,  Sayer  i6o.  {b)  Ryder, 

(f)'  Rex.  V.  aldermen  df  Heydon.'    Sayer  208,  209. 
\d)  Bui.  Ni.  Pr,  1*9.  , 

Z  +  on 


344  THB    LAW 

on  this  ground  a  rule,  calling  on  churchwardens  and  over- 
feers  to  (hew  caufe  why  a  mandamus  fhould  not  ifliie  di« 
reAed  to  them  and  the  twenty  principal  inhabitants  of  the 
parifli,  was  held  to  be  improper.  The  court,  however, 
on  motion,  gave  leave  to  amend  the  rule,  faying,  it  would 
be  good  on  new  fervice  (a)» 

And,  if  the  mandamus  be  to  proceed  to  the  ele3ion  of 
a  perfon  to  i^Jl  up  a  corporate  office,  of  which  a  pei^on  is 
already  in  pofTefEon,  the  latter  muft  be  made  a  party  to 
the  rule  (h). 

So,  if  the  mandamus  be  to  remove  a  perfon  from  a 
place,  which,  by  his  default  in  not  taking  certain  oaths  pre- 
fcribed  by  zA  of  parliament,  has  become  void,  he  mufl  be 
made  a  party  to  the  rule  (c). 

It  is  reported  to  have  been  (aid,  by  Holt,  that  in  a  mat- 
ter of  right,  as  for  inflance,  where  a  mandamus  is  prayed 
to  reflore  a  man  to  an  office,  the  court  never  requires  an 
affidavit  of  the  hA  -,  but  that  where  the  application  is 
made  for  a  fuppofed  failure  of  duty  in  the  perfon  to  whom 
the  writ  is  to  be  addrefTed,  an  affidavit  of  the  faft  will  firft 
be  required  {d).  But  this  diflindiion  does  not  feem  very 
intelligible ;  and  it  is  apprehended,  that  the  prefent  practice 
is^  in  all  cafes,  to  require  an  affidavit. 

After  what  has  been  faid,  it  feems  almoft  unnecellary 
to  add,  that  the  writ  is  never  granted  as  a  matter  of 
courfe;  but  that  fome  reafon  muft  be  affigned  for  it(^). 
It  is  not,. however,  nec^flary,  that  the  party  applying  for 
it  f}iould  have  a  clear  undifputed  right :  it  is  fufficient  that 
his  right  is  doubtful,  and  the  court  will,  in  fuch  a  cafe, 

(a)  Rex  y^  churchwardens,  Sec,  of  Clerkenwell,  8G.  i,  id.  199, 200. 

(b)  Rex  V.  Banks,  1453,  ante,  p.  41. 

(0  Vid.  3  Salk.  230I  Skin.  393,  397,  546,  549.   Ante^p*  337* 
(^)  3  Salk.  230,  {e)  J  Term  Rep,  425* 

i'iTue 


OF    CORPORATIONS.  34^ 

illlie'the  mandamus,  in  order  that  the  right  ouiy  be  tried 
on  the  return  (a). 

But  the  court  will  in  no  cafe  grant  a  mandamus,  till 
there  has  been  a  default :  and,  therefore,  in  the  cafe  of  the 
King  againft  the  borough  of  St.  Ives,  where  a  mandamus 
was  granted  to  the  churchwardens  and  overfeers  of  the 
poor,  to  make  a  poor's  rate,  the  court  would  not  grant  a 
mandamus  to  the  juftices  at  the  fame  time  to  allow  it ;  for 
they  would  not  prcfume  that  they  would  not  do  their 
duty^  though  the  fame  juftices  had  before  refufed  to  al* 
low  a  rate,  when  a  mandamus  liTued  for  that  purpofe,  and 
had  i)een  taken  up,  but  the  term  before,  on  an  attachment 
for  difobedience  (^). 

On  a  motion  for  a  mandamus  to  the  warden  of  the 
vintners  company  to  fwear  J.  S,  one  of  the  court  of  aiSf- 
tants,  there  was  no  pofitive  aiSUavit  of  his  eled^ion;  it  was 
*only  fworn,  that  he  was  Informed,  by  foi^ie  of  the  court 
of  afHlWits,  that  he  was  eledled,  and  that  he  had  applied 
to  infpe<a  the  court  books  in  order-  to  fee  whether  he  was 
elc£led  or  not,  and  was  refufed :  The  court,  on  account  of 
this  refufal,  granted  a  rule  to  Ihew  caufe,  though  otherwife 
they  would  hardly  have  granted  it ;  but  they  iaid  that  had 
there  been  n  pofitive  affidavit  of  his  elefUon,  they  would 
have  granted  the  writ  in  the  iirft  iiiftance  (c). 

Where  the  office,  to  which  the  party  applying  for  a 
mandamus  to  be  admitted,  fwprn,  orreftored,  is  not  of  a 
defcription  generally  known,  as  thofc  of^  alderman,  re- 
corder, or  town  clerk  are,  it  muft  be  fpecially  (hewn  what 
the  nature  of  the  office  is ;  therefore  it  was  rdfufed,  to 
fwear.a  man  who  had  been  eledled  to  the  office  of  on^  of 


(^i)  Rex.  V.  Dr.  Bland*   Bui.  Ni.  Pr.  aoo.  Rex  v.  Everett,  B.R.H. 
%6t.    Ante,  p.  3*7,  319.  (b)  M.  8  G*  3.    Bui.  Ni.  Pr.  I99f 

(0  M.  %$  G,  i.    BuK  Ni.  Pr.  >oa, 

the 


346  THB    LAW 

the  eight  men  of  Afhbourn  Court,  becaufe  it  did  not  ap- 
pear what  was  the  nature  of  the  office ;  fo  that  the  court 
could  not  judge  whether  it  was  an  office  for  which  a  man- 
damus would  lici  but  they  had  before  granted  the*  writ  for 
one  of  the  approved  men  of  Guildford,  becaufe  the  nature 
of  the  office  was"  particularly  defcribed  to  them  (a). 

Where  there  is  a  corporation  by  prefcription,  thecon- 
ftitution  of  it  muft  be  verified  by  affidavit.  Where  it  is 
by  charter,  a  copy  of  the  latter  muft  be  produced  at  the 
time  of  making  the  motion.  And  where  the  application 
is  made  in  behalf  of  a  party  interefted,  his  right  mxjft  alfo 
be  verified  byaffidavit  (^).  But  where,  by  charter  or  pre- 
fcription, the  corporate  body  ought  to  confift  of  a  definite 
number^  and  they  negle£l  to  fill  up  the  vacancies  as  they 
happen,  the  court  will  iiTue  a  mandamus  for  that  purpofe, 
even  where  no  particular  perfon  is  interefted  (c). 

When  a  proper  application  Has  been  made  and  grant- 
ed for  a  mandamus  to  proceed  to  an  elcftion  on  a  vacancy 
in  a  corporation,  it  is  not  a  matter  ofcourfe  to  grant  ano- 
ther writ  for  the  fame  purpofe  on  the  application  of  another 
party :  but  if  there  be  reafonable  caufe  to  fufpeft  that  the 
party  who  firft  applied  does  not  really  mean  to  carry  the 
writ  into  execution,  and  this  be  particularly  laid  before  the 
court  by  affidavit,  they  will  grant  a  rule  to  fliew  caufe  {d)  ; 
OF  will,  perhaps,  order  a  time  for  proceeding  to  the  elec- 
tion to  be  infer  ted  in  the  firft  mandamus,  and  make  a  rule, 
that  notice  of  the  time  be  given  by  the  proper  officer ;  and 
if  it  afterwards  appear,  that  no  election  has  been  had  on 

(^a)  Anon.  1  Mod'.  316,  cited  Bul.^i.  Pr,  199. 

\h)  Bui.  Ni.Pr.  200. 

(f)  Gafe  of  the  town  of  Nottingham.  43  Q.  a,  Bui.  Ni.  Ph  101, 
vid.  ante,  p.  314* 

(^)  a  Bur.  781.  Rex  V.  corpor.  of  Wigan,  or  Rex  v.  Curgbey. 
Sayer  105.    Rex  v.  corpor.  pf  Scarborough,  cont.  B.  R.  ^.  179. 

the 


OF     CORPORATIONS. 


347 


the  day  appointed,  and  no  notice  given,  they  will  then 
order  another  mandamus  {a). 

The  priority  of  application  to  the  court  for  a  manda^ 
mus  to  go  to  aii  election,  is  generally  cafual  and  acciden- 
tal {b) :  but  where  there  has  been  a  verdift  againft  an  of- 
ficer of  a  corporation,  an  application  cannot  be  made  for 
a  mandamus  to  proceed  to  eleft  a  perfoh  to  fupply  his- 
place,  till  judgment  be  aftually  figned,  and  then  the  pro- 
fecutor  in  the  information  is  intitled  to  the  priority  (c). 

The  writ  muft  always  be  addrefled  diredtly  to  the 
party  who  is  to  do  the  a<S^,  and  not  to  command  him  to 
compel  another  to  do  it :  therefore,  where  a  mandamus 
was  dire<Sl:ed  to  the  mayor,  aldermen,  and  capita]  bur- 
geffes  of  Derby,  and,  after  reciting  the  removal  of  the' 
party  complaining  from  his  office  of  burgefs  by  A.  and  B. 
commanded  the  mayor,  &c.  to  command  A.  and  ti.  to 
reftore  him;    it  was  quaflied(^. 

Where  the  thing  required  to  be  done,  is  to  be  done  by 
the  whole  corporation,  the  writ  muft  be  direfted  to  the 
whole,  by  their  corporate  name.  Thus  where  a  manda- 
mus was  dire£ted  to  the- mayor,  aldermen,  and  commonalty 
of  Rippon,  and  they  returned^  that  they  were  incorporated 
by  the  name  of  the  mayor,  burgejfes^  and  commonalty,  the 
court  held  it  bad  [e). 

When  the  aft  is  to  be  done  by  a  part  only  of  the  cor- 
poration, it  may^  notwithftanding,  be  direded  to  the  whole 
by  their  corporate  name ;    and  it  may  alfo  be  direfted  to 


{a)  Rex  v;  corporation  of  Haflemere,  Sayer  io6. 

{b)  Per  Ld.  Mansfield,  2  Bur.  784. 

(f)  Rex  V.  corporation  of  Weft  Looe,  3  Bur.  13S6. 

{if)  2  Salic.  436.     Vid.  ^  Barnard  K.  330,  350^    Ante,  p.  284. 

(^)  Rex  V.  mayor,  &Cf  of  Rippon,!  Salk.  433. 


that 


I 


348  THE    LAW 

that  part  9nly  which  is  to  do  the  a£t  (a).  But  if  it  be  not 
dire£led  to  the  whoky  by  their  corporate  name,  then  it  muft 
not  include  in  its  dire£tion  any  other  p^rfons  than  thofe 
who  are  to  do  the  ad.  Therefore,  where  a  mandamus 
was  direded  to  the  mayor  and  aldermen,  commanding 
them  to  admit  a  perfon  to  the  office  of  town  clerk,  when, 
in  fa£l^  it  was  the  buiineft  of  the  mayor  ^lone  to  admit  him, 
the  writ  was  quafhed  by  three  juftices,  againft  the  opinion 
of  Holt,  who  thought  the  addition  of  the  aldermen,  only 
furpluiage(^). 

So,  where  the  right  of  elecSlion  of  a  town  clerk  was  in 
the  mayor  and  aldermen  only,  and  a  writ  was  direded  to 
the  mayor,  aldermen,  and  common  councily  commanding 
them  tp  proceed  to  an  ele<%ion,  the  court  faid  they  would 
not  expe£l  a  return  to  this  writ,  becaufe  the  mayor,  al« 
dermen,  and  common  council  were  not  the  whole  corpora- 
tion, and  the  common  council  had  no  right  (r). 

But  a  trifling  informality  in  the  diredion  cf  the  writ, 
Ihall  not  vitiate  it  if  it  be  right  in  fubftance.  Thus,  where 
it  appeared  that  the  power  of  amotion  was  in  the  mayor, 
aldermen,  and  others  of  the  common  council^  and  the  writ  was 
dite&ed  to  the  mayor,  aldermen,  ^Tn^common  council,  which, 
it  was  faid,  inferred,  that  the  mayor  and  aldermen  were  no 
part  of  the  common  council ;  the  court  faid,  it  was  true 
that  the  writ  ought  to  be  directed  to  die  body  who  were  to 
do  the  a£i:,  but  that  there  was  nobody  in  this  dire<Sli<m 
but  who  muft  join  in  doing  it;  that  it  was  only  repeating 
the  feveral  conftituent  parts  of  the  corporation,  and  the 

{a)  I  Ld.  Raym.  560, 561.  »  Salk,  700,  Semb.  3  Salk.  »3X,  cqnt. 
Comb.  2x3,  ace. 

"(^)  2  Salk.  701.     N.  B.  In  this  cafe  Holt  denied  a  cafe  in  3  Bulftr. 
X9tf,  to  be  law,  » 

(f)  Rex,.  V,  mayor,  &c.  of  Norwich,  Str,  55* 

mentioh 


OF    CORPORATIONS.  349 

mention:  of  the  intire  conxmon  council  after  the  mayor  zM 
alderpien,  was  but  a  repetition  as  to  the  latter  (a). 

Whbre  diftindi  a£b  are  to  be  done  by  perfons  a£Ung 

in  different  capacities,  and  a  writ  is  directed  to  them  in  the 

conjunctive  to  do  thofe  a<^,  it  ihall  be  taken  reddendo 

Jingu/ajtngulis*    Thus  where  the  right  of  eledlion  of  a 

mayor  was  in  the  burgefl^s  alone,  and  the  power  of  fwear- 

# 

ing  him  into  oiEce  in  the:  old  mayor  alone,  a  writ  waS 
diredbed  to  the  mayor  and  burgefTes  commanding  them  to 
choafe  and  ta  fwear  a  mayor'  according  to  their  au- 
thority.(^)  :  a  motion  was  made  for  a  fiiperfedeas  to  this 
writ,  on  the  ground,  that  the  mayor  could  not  make  a  re-» 
turn  to  it  as  dire<^d  to  him  to  eleCi'^  nor  the  corporation 
as  diredled  to  them  to  fm^ean  But  the  c6urt  held,  that 
the  writ  was  to  be  conftrued  in  the  diftributive,  and  that 
the  mayor  and  the  burgei&s  were  to  do  that  jrefpediiVely' 
which  refpedively  belonged  to  them  (c). 

Whmu  crofs  applications  are  made  for  a  mandamus  to 
go  (^  an  election  by  parties  claiming  the  right  to  be  in 
different  perfons,  the  court,  whether  they  grant  concur- 
rent writs  or  not,  will  not  determine  to  whom  the  dire£Uoa 
Ihail  be,  but  leave  the  party  obtaining  the  writ  to  dire£fc  it 
at  his  peril ;  becaufe  the  proper  dire(^on  may  depend  upon, 
the  very  queftion  to  be  tried  {d)*  > 

A  MANDAMUS  muA  not  be  tefte'd  out  of  term,  for  in 
this  refpe^  it  is  like  a  latitat  or  other  judicial  procefs ; 
aor  ought  it  to  be  tefle'd  of  a  day  before  it  was  grated  by 
thi^  court  (e). 

{a)  Pees  Vk  mayor  c£  Leeds.     Str.  640* 

{^)  Quod  eligatis  et  juretis  majorem  fecuiidum  au6toritatem  veftram. 

(c)  Rex  v.  mayor  and. burgeiTes  of  Tregony.     8  Mod.  iii* 

(//)  Rex  y.  corporation  of  Wigaa*    2  Bur.  784, 

{e)  2  Keb.  91.    z  Salk.  434. 

With 


350  THE    LAW 

9 

With  rcfpc£l  to  the  time  between  the  teftc  and  return, 
it  is  faid  in  Salkeld  {a}y  that  a  rule  was  made  in  Michael- 
mas term,  in  the  4th  of  Anne,  that  if  the  corporation,  ta 
which  the  mandamus  is  fent,  be  above  forty  miles  from 
'  London,  then  there  fhould  be  fifteen  days  between  the 
tefte  and  return,  but  if  only  forty  miles,'  then  only  eight 
days ;  but  in  a  marginal  note  in  Strange  (^),  it  is  faid, 
that  on  a  queftion  about  the  pradtice,  as  to  places  more 
than  forty  miles  from  London,  this  rule  was  produced,  and 
that  it  appeared  to  be  fourteen  and  not  fifteen  days ;  that 
it  appeared,  indeed,  to  have  the  words  ad  minus ;  but  thefe 
were  held  to  mean,  that  one  day  fhould  be  inclufive,  and 
the  other  exclurive,fo  that  a  writ  tefte'd  on  the  14th  of  No- 
vember might  be  returnable  on  the  2Sth  (c). 

Before  the  ftatute  of  9  Anne,  c.  20,  it  was  the  ufual 
practice,  if  the  party  to  whom  the  mandamus  was  diredled, 
did  not  make  a  return  to  it  at  the  time  when  it  was  made 
returnable,  to  ifliie  an  alias  and  zpluries^  and  aft(er  that  a 
peremptory  rule;  though  in  extraordinary  cafes,  where 
the  court  apprehended  much  mifchief  from  delay,  they 
would  require  a  return  to  the  alias  {d). 

If  no  return  was  made  after  the  expiration  of  the  rule, 
the  courfe  was  to  grant  an  attachment  againft  the  perfons 
to  whom  the  mandamus  was  direfted ;  with  this  difference, 
however,  that  where  a  mandamus  was  diredted  to  a  corpo- 
ration to  do  a  corporate  a6t,  and  no  return  was  made>  the 
attachment  was  granted  only  againfl  thofe  particular  per- 
fons who  refufed  to  pay  obedience  to  the  maiidamus :  but 
where  it  was  directed  to  feveral  perfons  in  their  natural 
capacity,  it  ifTued  againft  all,  though  when  bef9re  the  court 


(a)  2  Salk,  434.    IX  Mod.  64.  {b)  x  Str.  407, 

(r)  Rex  V.  mayor  and  jurats  of  Doyer,  .  i  Str.  407, 
(^0  6alk.434«    Skin.  669. 


the 


OF    CORPORATIONS.  35I 

the  punifhmcnt  was  proportioned  to  the  offence  (a). 
Thus,  where  a  mandamus  was  dire£led  to  two  bailiffs,  of 
whom  one  was  for  obeying  the  writ,  and  the  other  would 
neither  obey  it,  nor  join  in  a  return;  the  court  granted  an 
attachmeiit  againft  both,  obferving,  that  it  would  be  end- 
lefs,  in  all  cafes,  to  try  who  was  in  the  right,  and  that  fuch 
difputes  might  be  always  ufed  as  a  pretence  for  delay  {h). 

The  inconvenience  arifing  from  the  delay  in  not  grant- 
ing an  attachment  for  not  returning  a  mandamus,  till  after 
9  pluries  had  iffued  and  been  difobeyed,  gave  rife  to  the 
ftatute  9  Anne,  c,  20,  by  which,  after  reciting,  "  that 
perfons  who  had  a  right  to  the  offices  of  mayor,  portreve, 
bailiff,  and  other  offices  in  cities,  towns  corporate,  and 
boroughs,  or  to  be  biirgefles  or  freemen  there,  had  been 
either  illegally  turned  out,  or  had  been  refiifed  admiffion, 
and  had,  in  many  cafes,  no  other  remedy  to  procure  them- 
felves  to  be  refpediively  admitted  or  reflored  to  their  of- 
fices or  franchifes,  than  by  writs  of  mandamus,  the  pro- 
ceedings on  which  were  very  dilatory  and  expenfive ;"  it 
^as  enafted,  "  that  after  the  firft  day  of  Trinity  term,  in 
the  year  171 1,  where  any  writ  of  mandamus  fhould  iffue 
out  of  the  Queen's  Bench,  the  courts  of  feffions  of  counties 
palatine,  or  put  of  any  of  the  courts  of  great  feffions  in 
\Vales,  in  any  of  the  cafes  af ore/aid^  fuch  perfon  or  perfons 
who,  by  the  laws  of  this  realm,  are  required  to  make  a  re- 
turn to  fuch  writ  of  mandamus,  fhould  make  his  or  their 
returntothe/ry?  writ.— f,  i."^      :     . 

After  this  ftatute,  the  court  taking  the  rule  here  laid 
down  in  the  cafe  of  corporations^  as  an  example,  began  to 
adopt  it  in  all  cafes  whatever :    it  is,  therefore,  now  the 

(tf)  Rex.  V.  churchwardens,  &c.  of  Salop,  H.  8  G.  a*   BuL  Ni,  Pri. 
aoi,  vid.  Comb.  .208. 

(A)  Cafe  of  the  bailiffi  of  Bridgenorth.    %  Str.  808. 

ufual 


s 


351  THE   LAW 

ttfual  courfe,  even  In  cafes  not  within  die  flatufe,  to  grant 
a  rule  to  retam  ^zfirfl  writ.  But  die  application  for  that 
rulemuft  be  founded  on  an  affidavit  of  tbcT^rv/rr  of  the 

writ  {a). 

The  rule  to  return  the  writ  is  ufually  a  four  days  rule : 
but  where  the  writ  is  direded  to  a  peribn  in  town,  he  may 
be  called. upon,  at  any  rime  after  the  return  day,  to  return 
it  immediately  :  the  court  having,  on  conference  widi  the 
clerks  of  the  crown  office,  declared,  that  diere  was  no 
ftated  rime  for  tbefe  rules,  but  diat  the  diihmce  of  the  place 
ought  to  be  the  guide  {h). 

Ir  the  rule  to  return  the  writ  be  difobeyed,  an  attach* 
ment  iflties  in  the  fame  manner,  and  ag^nft  the  fame  par- 
ries as  before  the  fhttute.    But  caufe  may  be  fhewn  againfl: 
the  rule,  and  if  there  appear  to  be  any  real  difficulty,  the. 
court,  inflead  of  compelling  a  return,  will  put  the  matter 
in  another  way  of  trial. A  mandamus  had  'ifliied,  di- 
rected to  th^  mayor  and  jurats  of  Rye,  commanding  them 
"  to  admit  and  fwear  Edwin  Wardroper  into  the  office  of 
one  of  the  jurats  of  that  corporation,  or  to  fhew  caufe  why 
they  refufed  to  admit  him." — ^The  writ  not  having  been 
returned  at  the  proper  time,  the  mayor  and  jurats  were 
called  upon  to  fhew  caufe,  why  an  attachment  fhould  not: 
iffiie  againfl  them.       They  fhewed  for  caufe,  that  the 
mayor  claimed  a  fole  and  exclufive  right  to,  nominate  this 
jurat,  and  the  jurats  denied  that  the  mayor  had  any  fuch 
fole  and  exclufive  right,  fo  that  it  was  impoffible  for  them 
Xo.jtnn  in  a  return ;  unlefs  either  the  one  or  the  other  fhould 
give  up  the  right  on  which  they  infifted :   that  the  jurats 
wifhed  to  return,  that  Wardroper  was  mt  eleded :  th^t  the 

{a)  Da  Cofta  v.  the.Rufllan  companyi  x  Barnard,  K.  B«  sif. 
s.Str.  783.    Fitzg.  4. 
Qi)  Rex  V.  Bcttcfwortii,  a  8tr.  857. 

mayor 


t. 


Of    CdR?ORATlONfl{*  35J 

tiiayor  refufed  to  join  in  this  return,  and  the  jurats  coujd  not 
force  him.— ^It  was  obferved  too,  that  an^ attachment  would 
anfiver  no  purpofe,  becaufe  when  the  defendants  were  ex- 
amined on  interrogatories,  the  queftion  would  appear  td 
be'a  mere  queftionof  right.  It  was,  therefore,  propofed 
on  the  part  of  the  jurats,  and  aflented  to  on  that  of  the 
majror,  that  the  queftion,  **  Whether  Wardroper  was  duly  ^^ 
elc£led  or  not,"  fliould  be  tried  in  a  feigned  iffue  {a).  ^^ 

If  a  mandamus  be  dire6led  to  a  mayor^  bailiffs,^  >nd 
burgefTes,  the  mayor  alone,  as  the  head  of  the  corporation, 
may  make  the  return,  and  the  reft  '  cannot  di(avow  it, 
though  it  was  made  without  their  confeht  i  fcut  in  fuch  i  ' 

cafe,  if  the  return  be  falfe,  the  mayor  may  be  punlflied  2$ 
for  a  high  mifdemeanor  (^).  So,  the-coiirt  will  not  inter- 
fere to  prevent  the  mayor  from  executing  the  writ,  thougl^ 
the  reft  of  the  corporation  wifli  to  return  an  excufe,  but  . 
.will  leave  th^  corporation  to  take  ^eir  meafures'againft 
him(f}. 

The  firft  writ  of  mandamus,  in  general,  concludes  with 
commanding  obedience,  or  caufe  to  be  ihewn  to  the  con- 
trary, **  vel  caufam  nobis  fignificies  :'*  and  this  leems  to 
have  been  the  eftabliftied  courfe  as  early  as  the  cafe  oi 
James  Bagg  (^).  But  it  feems  that  the  omiilion  of  this 
claufe  "  vel  caufam  nobis  lignifices,"  does  not  make  the 
firft  writ  peremptory,  nor  preclude  the  party  to  whom  it 
is  dire£led,  from  making  a  return  and  traverfing  the  fa<9:^ 
alleged  in  the  writ  j  more  efpecially  if  there  be  any  ex- 
preifion  in  the  latter,  which  feems  to  admit  a  doubt  about 
the  fads,  fuch  as  ^^  fi  ita  eft,"  "  ficut  informamur.*' 

(a)  Rex  V.  mayoi*  and  jurats  of  Rye,  %  Bur.  7$S. 
.    {h)  Cafe  of  the  mayors  &c«  of  Abingdon,  a  Salk>  43 1« 
/    (r)  Cafe  of  the  mayor  of  Norwich,  iSalk.  432* 

(lO  Vid.  I  Rol.  Rep.  T73>  st24<    ixCo.93.    Ante,p,50« 

Vol,  II.  A  a  Ih 


354  t  H  E      LAW 

In  the  cafe  of  St.  John's  College,  in  Caqibridge  (c),  be- 
fore mentioned  (^),  the  mandamus  Tuggefting,  "  that  di- 
vers fellows  had  not  taken  the  oaths  prefcribed  by  the  ft. 
I  W.  and  M.  within  the  limited  time,  by  which  their  fel- 
lowlhips  had  become  vacant,  notwithftanding  which  they 
continued  to  refide  v/ithin  the  college,  and  received  the 
profits  and  benefit  of  their  fellowfhips,  f:cut  ififormamur^'^ 
then  commanded  the  prefident  to  remove  thofe  fellows 
from  the  college,  and  to  certify'  "  qualiter  hoc  breve 
execut." 

On  the  part  of  the  college,  it  was  prayed,  that  th&  writ 
might  be  quafhed,  "  quia  improvide  emanavitj"  and  the 
ground  of  the  application  vyas,  that  there  being  no  claufe. 
of  "  ve]  caufam  nobis  fignifices,"  or  **  fi  ita  eft,"  the  writ 
was  peremptory  in  the  firft  inftance,  which  precluded  the 
p'arties  from  being  heard  or  making  a  returni  as  it  would 
hs  a  contempt  to  the  court  to  make  any  other  return  than 
that  they  had  paid  obedience  to  the  writ.  But  it  was  an- 
fwered,  by  the  court,  they  might  make  a  return,  and 
anfwer  the  fuggeftions  of  the  Writ  if  they  were  falfe,  for 
that  this  was  not  a  peremptory  writ,  as  it  had  tlie  words 

m  e 

*'  ficut  informamur." 

And  afterwards,  in  the  cafe  of  the  King  and  Owen  fr), 
on  ftiQwing  caufe  why  an  attachment  fliould  not  ifliie 
'  againft  the  defendant  for  not  making  a  return  to  an  '*  alias- 
mandamus"  it  was  objected,  that  the  claufe  **  v el  caufam 
nobis  fignifices"  was  omitted,  and  that  therefore  the  writ 
was  peremptory,  and  did  not  give  the  liberty  of  being 
heard,  the  court  overruled  the  objeciion,  and  ordered  a  re- 
turn to  be  made. 

If  the  writ  vary  from  the  rule  by  which  it  was  ordered 
to  ilfiie,  it  will  be  fuperfeded ;  as  if  the  rulebc  that  a  manda- 

(^)  Skin.  359.  {b)  Aate,  p.  276.  {c)  Skjn.  66I9. 

4         ♦  •  rxujs. 


OF    CORPOR  ATI6nS.  ^SS 

nius  (hall  go  to  tHe  clerk  of  a  company,  to  deliver  to  the 
new  clerk  all  books,  papers,  &c.  belonging  to  the  company, 
where  it  ought  to  be  to  deliver  them  to  the  company,  yet, 
if  on  that  rule,  the  mandamus  be  adually  made  out  to  de- 
liver them  to  the  company,  the  writ  will  be  iupeffeded, 
and  an  application  for  a  new  rule  become  neceflary  (a). 

If  it  appear  by  the  writ,  that  there  is  another  remedy  to 
procure  the  thing  to  be  done  which  it  commands,  it  will 
be  quafhed.  Therefore  where  a  writ  direfled  to  Dr. 
Walker  as  vice-mafter  of  Trinity  College,  in  Cambridge, 
commanded  him  to  put  in  execution  afentence  of  the 
bifhop  of  Ely,  whom  it  recited  to  be  general  vifitor  of  the 
college,  it  was  quaflied  on  the  ground,  thiat  the  vifitor 
could  compel  the  execution  of  his  own  fentence  (b). 

The  writ  muft  contain  convenient  certainty  in  alleging 
the  duty  to  be  performed ;  but  it  is  not  neceflary,  that  it 
fhould  fhew  by  what  authority  the  duty  exifts  {c). 

A  MANDAMUS  direfted  to  the  m^yor  and  burgeflcs  of 
Nottingham,  after  reciting,  "  that  for  time  immemorial 
there  had  been,  and  that  there  ought  to  be,  a  common 
coupcil,  confifling  of  twenty-four  perfons,  and  that  there 
were  now  fix  vacancies  in  the  commop  council," -com-? 
manded  the  defendants  to  de6i  fix  perfons  to  fill  up  thefe 
vacancies.--  ' 

It  vrzs  objected  to  this  writ,  that  it  did  not  fet  forth 
with  fufficient  particularity  the  nature  of  the  right,  whether 
by  charter  or  ,prefcriptibn,  to  have  a  common  council, 
confining  of  twenty-four  perfons;  but  the  objedtion  was 
overruled,  there  having  been  many  precedjehts,  where  the 
thing  commanded  to  be  done,  was  fet  out  as  generally 

(a)  %  Str.  880.     Vid.  i  Barnard,  K.  B.  402. 

{b)  Dr;  Walker's  cafe,  B.  R.  H.  2i»,  ante,  p.  282,  283, 

(f)  Bui,  Ni.  Pfi.  204.  -       ^ 

Aa  »  a$ 


V    A 


356  THE    LAW 

as  in  the  prefent  mandamus,  and  no  precife  form  being 
ncccflary  for  thcfe  writs  (^). 

So,  where  the  writ  fuggeiled,  that  every  perfon  being 
the  fon  of  a  freeman,  and  born  after  his  father  had  been 
fworn,  had  a  right  to  be  admitted  a  freeman  on  paying  a 
reafonahle  fine ;  this  was  held  fufficient,  without  Shewing 
in  what  manner  or  by  whom  the  fine  was  to  be  afleflcd  (A  J. 

The  writ  muft  fhew,  that  the*  party  who  profecutes  it, 
has  complied  with  every  thing  which  .it  fuggefts  to  be 
neceflary  to  complete  his  title  to  the  thing  commanded  ; 
but  it  is  not  neceflary  that  his  compliance  fliould  be  di- 
reftly  averred ;  it  is  fufficient  if  it  appear  by  implica- 
tion. 

Thus,  where  a  writ  alleged,  that  within  the  town  of 
Cambridge  there  was  a  cuftom,  that  every  perfon,  being 
twenty-one  years  old,  who  had  ferved  an  apprenticefhip 
for  feven  years  in  any  trade,  with  any  freeman  within 
the  faid  town,  fuch  freeman  living  during  the  time  of  the 
apprenticefhip  in  the  faid  town,  and  fuch  apprentice  living 
with  his  majler  during  his  apprenticejhip^  had  a  right  to  be 
admitted  a  freeman ;  that  the  profecutor  was  twenty-one 
years  old,  and  had  ferved  an  apprenticefliip  in  the  trade 
of  a  gardener,  for  feven  years,  with  Matthew  Blakney, 
deceased,  the  faid  Matthew  Blakney  being  a  freeman  of 
the  faid  town,  and  having  lived  during  fuch  apprentice- 
fhip within  the  faid  town  :  it  was  obje£led,  that  it  was  not 
pofitivch  averred  by  thefe  latter  words,  that  the  mafter  of 
1i\\(t  profecutor  was  a  freeman,  and  continued  fo  during  the 
apprenticefhip.  But  the  court  were  unanimoufly  of  opi- 
nion, that  the  obje£lion  Ihould  be  overruled  {c)m 

{cC)  Rex  v.  mayor  Uz.  of  Nottingham,  Sayer  36. 

{h)  Moor«  V.  mayor  of  Haftings,  B.  R.  H.  353,  3^2.  - 

(r)  Rex  V,  Whifkin^  Andr.  r. 

It 


OF    CORPORATION  5.  ^57 

It  is  not  neceflary,  that  the  writ  fhould  exprefsly  al- 
lege, that  the  perfon  to  whom  it  is  direfled,  is  the  per.fon 
who  ou^ht  to  do  the  a£l  commanded  ;  yet  it  muft  appear 
either  exp'refily  or  by  plain  implication. 

This  objediion  was  taken  in  the  cafe  of  the  King  and 
Dr.  Ward,  which  was  a  mandamus  direiSed  to  the  do£lor, 
who  was  commiflary  of  the  court  of  the  arcjibifliop  of 
York.,<:ommanding  him  to  admit  Henry  Dryden  to  the 
office  of  deputy  regiftep  in  that  court :  but  it  was-anfwcred, 
that  notice  was  taken  in  the  writ,  thai  application  had  been 
made  to  the  do£^or  to  admit  Mr.  Dryden ;  that  he  had 
unjuftly  refufedi  and  that  his  refufal  was  laid  to  be  in 
contempt  of  our  Lord  the  King  ;  and  it  was  faid  it  was 
impoifible  this  could  be  applied  to  the  doctor  unlefs  he  had 
been  the  perfon  who  was  bound  to  admit  to  this  office — 
It  was  obferved  too,  that  the  writ  did  not  abfolutely  re- 
quire the  defendant  to  admit  the  profccutorj  but  if  h^ 
did  not,  to  fliew  the  reafon  of  his  refufal :  if,  therefore,  it 
was.  argued,  he  was  not,  in  faft,  the  pvfon  who  wa.s 
bound  by  law  to  ^dmit  him,  he  might  have  alleged  that 
in  his  return,  and  it  would  have  been  a  good  return ;  but 
inft^  of  this,  he  had  returned,  that  he  was  inhibited  by 
the  archbifliop,  which  was  a  ftrong  confeffion,  that  other- 
wife  he  fhould  have  thought  himfelf  bound  %o  admit  him. 
It  was  like  wife  obferved,  that  in  the  precedents  of  writs  - 
of  this  kind,  the  exprefs  averment  was  as  often  omitted 
as  inferted  (/?).  For  thefe  reafons  the  court  held  the  writ  to 
be  fufficient. 

So^  where  a  mandamus  commanded  the  defendant,  as 
judge  of  the  prerogative  court  of  Canterbury,  to  grant 
probate  of  the  will  of  Lord  Londonderry^  to  his  execu- 
tors, which  he  had  contra  juris  exigeniiam  refufed,  and  ex# 

{a)  I  Barnard,  K.  B.  411,    %  Str*  ^79^ 

A  a  3  ccptioft 


358  THE     LAW 

ception  was  taken  to  the  writ,  becaufe  it  only  alleged  that 
the  carl  bad  bona  notabilia  at  Weftminftcr,  and  in  £vers 
ether  places^  but  did  not  fay  within  the  province  of  Canter- 
bury, in  which  cafe  only,  the  defendant  could  grant  the 
prob/ite,  the  court  held  that  the  fuggcftion  that  he  had  con-- 
tra  juris  exigentiam  refufed,  was  fufficient ;  and  obferved 
befides,  that  as  it  appeared  he  had  already  done  fooie  a<%s 
of  office  as  the  prerogative  judge,  he  fhould  not  now  be 
permitted  to  fay  he  had  no  jurifdidion  {a). 

Whether  it  be  a  good  objection  to  a  mandamus,  that 
it  is  argumentative,  does  not  appear  to  be  determined. 

A  MANDAMUS  direded  to  the  mayor,  &c.  of  York, 
Hated,  that  the  office  of  recorder  of  that  city  was  an  an- 
cient office;  that  on  the  15th  of  January,  1789,  it  was 
vacant;  that  it  belonged  to  the  mayor,  aldermen,  and 
{heriffs,  and  thofe  who  had  been  fheriiFs,  and  the  common 
council  of  the  city  for  the  time  being,  in  common  hall 
duly  ailembled,  or  the  major  part  of  them  fo  aflembled,  to 
eled  a  recorder  :  that  by  a  charter  granted  to  the  mayor 
and  commonalty  of  the  city  by  King  Charles  the  fecond, 
it  was  among  other  things  willed  and  declared,  that  no  re- 
corder of  the  city,  to  be  thereafter  chofen,  fliould  be  ad- 
mitted to.fuch  office  before  he  had  been  approved  by  his 
Majefty,  or  his  heirs  and  fucceflbrs ;  and  that  this  charter 
was  by  the  faid  mayor  and  commonalty  duly  accepted: 
that"  on  the  15th  of  January,  1789,  the  then  mayor  and 
IherifFs  of  the  city,  and  the  major  part  of  the  then  alder- 
men, thofe  who  had  been  fherifFs,  and  the  common  coun- 
cil, being  ddy  aflembled  in  the  common  hall  of  the  (aid 
city,  proceeded  to  the  eleflion  of  a  recorder;  at  which 
eledlion  William  Withers,  tfq.  being  didy  qualified  for 


{a)  Rex  T#  Du  Btttcfworth.    aStr,  857.    BuU  Ni.  Pri.  ao4. 

that 


OF    CORPORATIONS.  2S9 

that  o.Tice,  and  Robert  Sinclair,  £fq.  were  refpeilivcly 
prapofed  as  candidates  ;  that  at  the  (liid  ele£lioa  fifty- one 
of  'the  perfons  (o  aflcmbled  gave  their  votes  for  Mr.  Wi- 
thers to  be  recorder,  and  fifty  others,  together  with  one 
Jam^s  Browrt,  whathen  ufurped  the  office  of  one  of  the 
common  council  of  the  city,  'voted  for  Mr.  Sinclair ;  that 
an  information,  in  the  nature  of  ^uo  warranto^  had  fince 
been  exhibited  in  the  court  of  King's  Bench  againft  James* 
Brown  for  his  faid  ufurpation,  charging  him  with  exercifing 
the-  plac«,  office,  and  franchife  of  a  common  coiincirman 
of  the  faid  city,  without  any  legal  warrant :  that  oii  this 
information  Brown  was  afterwards  convifted  of  the  pre- 
mifes  charged*  againft  him,  and  by  the  confideration  of  the 
court  was  forejudged  and  excluded  from  the  aforefaid  office, 
place,  and'  franchife  of  a  common  councilman  of  the  faid 
city,  as  by  the  recdrd  would  appear;  "  by  reafon  of  which 
faid  premifes,  the  fliid  William  Withers  was  elected  into 
the  faid  office  of  recorder  of  the  city,  by  a  majority  of 
the  perfons  prefent  at-  the  election,  who  had  a  legal  right 
to  give  their  votes  at  the  faid  ele£lion." 

It  was  objefted,  that  as  to  the  eleftion  of  Withers,  the 
^^rit  was  merely  argumentative,  and  therefore  bad ;  that 
it  was  a  rule  in  pleading' that^^^i  arid  not  evidence  of  fafts 
fliould  be  ftated  ;  that  this  writ  contained  evidence  to  fup- 
port  the  faft,  but  not  the  fa£l  itfelf,  that  Withers  was 
ele(9:ed  recorder :  it  'ftated  that  the  corpor'atidri  were  duly 
aflenlbled;  that  Withers  atld  Sinclair  were  candidates,  and 
that  there  were  fifty  votes^  for  the  one  and'  fifty-one  for  the' 
other:  but  il  did^not  fbUo^  frbmthcnce  that  Withers  w^s 
elefte^  by  a  majority  of  votes,  for  that,  cotififlently  with 
every  thing  here  ftated,  there  might  have  been  another 
candidate  fof  whom'  fifty-two  vote^  were'  given,  as  it  did 
not  appear  how  many  voted  in  the  whole. 

A  a  if  Thb 


360  THE    LAW 

The  court  did  not  exprefsly  decide  on  this  obje£bion, 
on  the  ground  that  it  was  taken  at  an  improper  period  of 
the  proceedings ;  but  Mr.  Juftice  Buller  faid,  *^  he  was 
by  no  means  fatisfied  that  the  writ  was  improper,  for  that 
if  the  fad):  fuggefted,  that  another  candidate  was  chofen  by 
;i  majority  of  votes,  was  true,  it  might  have  been  re-* 
turned  (a). 

When  a  mandamus  is  returned,  the  courfe  is,  to  mov<$ 
that  the  return  may  be  made  a  concilium  (k). 

Till  lately  it  has  been  generally  underftood,  that  tha 
proper  time  for  taking  exception  to  the  writ,  is  after  the 
return  made,  and  before  it  be  filed  (r),  and  this  is  exprefsly 
laid  down  as  the  rule  by  Mr.  Juflice  Buller  in  his  Law  of 
Nifi  Prius  (i). 

In  the  cafe  of  Saii^t  John's  College  before  mentioned  (e)^ 
Holt  is  made  to  fay  to  the  counfel,  "  return  the  writ,  and 
when  it  is  of  Vecord  before  us  then  we  can  judge  of  Jt^ 
and  the  objeilion  may  be  faved  to  you  when 'the  return  is 
made." 

In  the  cafe  of  Owen,  which  followed  foon  afte^this  (/), 
the  court  again  faid,  that  the  return  might  be  made,  and 
then  exception  taken  to  the  writ,  fpr  that  the  court  had 
nothing  before  them  till  the  return,  and  obferved  that  they 
had  ordered  the  fame  thing  to  be  done  in  the  cafe  of  Saint 
John's  College. 

In  almofl  every  fubfequent  cafe  it  appears,  that  the  e^r 
ceptions  to^  the  writ  are  taken  and  argued  at  the  fame  tim^ 
that  exceptions  taken  to  the  r^/«r«  ^re  argued  (i')  :  and 

(a)  Rex  V,  the  mayor,  &c.  of  York,  5  Term  Rep.  66,  73,  75. 

(b)  Combi  289.  (jf)  I  Sid.  31. 
{d)  Bui.  Ni.  Pii,  205,  cites  5  Mod,  3x4. 

ie)  Ante,  p.  354.  (/)  Ante,  p.  354*  and  5  Mod.  314, 

ig)  Vid.  5  Mod.  420.  X  Ld.  Raym.  559.  a  Str.  893.  B.  R«  H^ 
f  ji,    Sayer,  37,    5  Bur.  2742. 


OP    CORPORATIONS.  361 

Acre  feems  to  be  a  good  reafon  for^  this  rule ;  for  many  ob- 
jeftions  to  the  writ  which  might  feem  to  have  fome  weight 
before  the  return,  may  be  cured  by  the  return  itfelf.  This 
rule  was  recognized  in  the  cafe  of  Withers  before  men- 
tioned (a) ;  for  there  the  counfel  for  the  defendants  attempt- 
ed to  take  exception  to  the  writ  before  it  was  returned,  and 
were  told  in  exprefs  terms  by  the  court,  that  the  proper 
time  to  do  fo  was  not  yet  "come,  and  that  they  muft  firft 
make  a  return  and  then  take  their  exceptions  rand  yet  in 
this  very  cafe,  when  the  counfel,  after  the  return  was 
made,  attempted  again  to  take  their  exceptions  to  the  writ, 
they  were  told  by  the  chief  juftice,  with  the  concurrence 
of  fome  of  the  other  judges,  **  that  they  were  now  too 
late :  that  the  corporation,  by  making  a  return,  had  pre- 
cluded themfelves  from  taking  exceptions  to  the  writ :  that 
it  was  for  the  convenience  of  fuitors  and  of  the  public  that 
fuch  objeftions  (hould  be  made  at  the  proper  feafon :  and 
that  it  ought  not  to  be  permitted  to  any  party  to  iricreafe 
the  expences  of  litigation  by  proceeding  in  the  fuit,  when 
be  himfelf  thioks  that  there  is  an  exception  in  limine  to  the 
proceedings  altogether"  (^). 

If  there  be  any  analogy  between  writs  of  mandamus 
and  pleadings  in  other  cafes,  either  what  the  chief  juftice 
here  fays  is  ill  founded,  or  the  uniform  practice  in  all  othei' 
cafes  has  been  wrong ;  for  in  all  other  cafes  either  party  is 
permitted  to  take  exception  to  any  former  part  of  the 
jdeadings,  though  the.  matter  comes  before  the  court  in  a 
fubfequent  ftage,  and  though  he  might  have  demurred  in 
the  firft  inftance, 

Th£  proper  time,  however,  to  apply  for  a  fuperfedeas 
%q  jhe  writ,  on  account  of  mif-direftion,  or  variance  from 
^e  rule  by  which  it  is  granted,  feems  to  be  the  moment 

{a)  358.  {b)  5  Term  Rep.  74. 


362  ,  THE     L  A  W       . 

the  miftakc  is  difcovered  (a) ;  for  this  rcfemWes  the  cafe  of 
an  application  to  fet  afide  a  writ  for  irregularity, 

It  is  uQt  neceffary  that  a  return  to  a  mandamus  direfted 
to  a  corporate  body,  fliould  be  made  under  the  common 
feal,  nor  is  it  neceflary  that  it  ihould  be  figned  bjt  the  head 
of  the  corporation  :  it  is  (ufficient  that  there  be  an  indbrfe- 
ment,  as  a  title  to  the  return,  by  fuch  words  as  thefe, 
*the  anfwer  of  fuc^i  and  fuch  '^perfons,"  the  parties  to- 
whom  the  writ  was  dire£led,  in  the  words  of  the  direc- 
tion (b) :  for,  it  is  laid,  when  the  writ  is  filed  they  (hall 
be  eftopped  to  fay,  that  it  is  not  their  return,  and  if  any 
other  (hall  have  made  it  for  themj  they  may  have  their  re- 
medy by  a£Hon  on  the  cafe  (c). — But  in  other  4>ooks  it  is 
,only  faid,  that  no  other  evidence  is  necef&ry  to  prove  the 
return  to  be  the  mayor's,  than  the  copy  of  the  writ  and 
the  return  of  it  in  the  Crown  Office  :  that  though  on  con- 
futation the  majority  of  the  corporation  be .  againft  the 
mayor,  and  make  a  return  in  his  name,  yet  it  (hall  be 
.taken  to  be  his,  if  he  do  not  come  and  difavow  it :  and 
that  it  is  not  neceflkry  to  prove  the  delivery  of  the  writ  to 
the  mayor,  though  it  is  to  be  delivered  to  him  as  the  moft 
vifible  part  of  the  corporation  (rf): 

If  a  writ  be  directed  to  a  corporation  by  a  wrong  name^ 
they  may  return  this  fpecially,  and  t^ke  advantage  of  it; 
but  if  they  anfwer  the  exigency  of  the  writ,  they  cannot 
then  objedt  to  the  writ  on  account  of  the  mifnoitier  (<?). 
;  If  the  writ  be  diredcd  to  the  wholer  corporation,  and 
the  return  purport  to  be  only  by  a.  part;  as  if  it  be  di- 

(a)  Vid.  Str.  55.    2  Str.  879.  - 

(b)  Rex  y.  St,  John's  College,  Skin.  36S.  Rex  v.  mayor  of  Exe- 
ter, I  Ld.  Raym;  213.  Reg,  v,  mayor  of  Thetford,  2  Ld„  R'ayra, 
84^.    ContTi  3  Keb^  350,  764., 

(c)  Skin.  368.      ,  (J)  Reg.  v.  mayor  of  Bath.    6  Mod.  152. 
(0  Salk.  433.    2  Ld.  Raym,  1233.    i  Keb.  623, 

redled 


V 


OF     CORPORATIONS.  363 

refted  to  the  aldermen,  bailiffs,  and  commonalty,  and  the 
return  by  the  bailiffs  and  capital  burgeffes,  this  is  ill;  be-- 
caufe  one  part  of  the  corporation  might  make  one  return, 
and  the  other  part  another  (^), 

The  court  will  not  grant  an  application  to  have 
the  return  to  the  mandamus  made  upon  oath^  though 
there  are  precedents  in  former  times  of  returns  being  fo 
made  (h).        - 

If  the  return  on  the  face  of  it  be  good,  in  point  of  law, 
,  but  the  matter  of  it  falfe,  the  party  injured  may  have  an; 
^ftion  on  the  cafe  for  a  falfe  return.  And  where  the  re- 
turn is  made  by  feveral,  the  aSion  being  founded  on  a  tort 
may  be  either  joint  or  feveral :  and  though  thp  return  be 
made  in  the  name  of  the  corporation,  yet  an  ai^ion  will  lie 
againft  the  particular  perfons  .who  caufed  the  return  to  be 
made :  and  though  the  writ  be  direiSed  to  the  mayor  and 
aldermen,  andjhe  return  be  made  in  their  name,  yet  the 
aftion  for  a  falfe  return  may  be  brought  againft  the  mayor 
alone:  but,  in  fuch  a  cafe,  if  it  appear  on  evidence  that 
the  defendant  voted  againft  the  return,  but  was  over  rulefl 
by  the  majority,  the  plaintiff  will  be  non  fuited  (f ), 

But  it  feems  that  the  plaimifi^  before  he.  bring  this  ac- 
tion, muft  procure  judgnient  to  be  entered  on  the  return,, 
and  declare  upon  that  (d)^ 

Ik  an  a6lion  for  a  falfe  return,  the  court  is  not  to  inquire 
whether  a  mandamus  ought  to  have  been  granted  or  not ; 
it  is  enough  that  the  mandamu$:Wa$  actually  granted,  and 
that  the  return  was  falfe  (/}.  » 


la)  I  Keb,  34.  -  , 

(b)  Latch.  123.    I  Sid.  257.    1  Ventr.  303.    Raym»_365,  364. 

(f)  Carth,  171,  229.    Salk."*374.    1  Ld.  Raym,  564, 

(^)  ft  Lev.  238,  239,  (e)  X  Ld,  Raym,  1264 

Where 


I 


( 


j64  THE    LAW 

Where  (everal  have  joined  in  fuing  the  mandamus, 
they  muft  all  join  in  the  action  for  a  falfe  return,  becaufe 
the  damages  are  joint,  and  the  expences  of  fuing  the  man- 
damus are  joint  (a). 

If  the  matter  concern  the  public  government,  and  no 
particular  perfon  be  fo  interefted  as  to  maintain  an  action, 
the  court  of  King's  Bench  will  grant  an  information  againft 
the  perfon  making  the  return  (i). 

Akd  if  in  fuch  an  a<Slion  or  information  the  return  be 
falfified,  the  court  will  grant  a  peremptory  mandamus : 
but  no  motion  can  be  made  for  it  till  four  days  after  the 
return  of  the  poftea,  becaufe  the  defendants  have  folong 
time  to  move  in  arreft  of  judgment  (r). 

.  The  adion  for  a  falfe  return  of  a  mandamus  has  two 
obje£is  j  the  recovery  of  damages  and  charges  e}q)ended 
in  profecuting  the  mandamus,  and  the  obtainment  of  a . 
peremptory  mandamus  :  but  if  the  aftion  for  the  falfe  re- 
turn be  brought  in  any  other  court  but  the  King's  Bench, 
the^firft  objeft  alone  will  be  anfweredj  for  the  court  of 
King's  Bench  will  not  grant  a  peremptory  mandamus  on 
a  return  falfified  in  any  other  court  (i),  and  tfie  reafon 
given  for  this  difti|i£lion  is,  that  the  peremptory  manda- 
mus recites  the-  faft  prout  patet  per  recordunty  which  can 
be  true  only  of  records  in  the  King's  Bench,  as  that  court 
can  take  no  notice  of  records  In  other  courts  (^). 

A  WRIT  of  error  lies  on  the  judgment  in  an  action  for 
a  falfe  return,  and,  while  it  is  depending,  operates  as  a 
Juperjedeai  to  a  peremptory  mandamus,  which  confequently 
cannot  iflue  till  the  queftion  be  ultimately  determined  in  " 
favour  of  the  plaintiff  in  the  aftion  (/}, 

(tf)  iLd.  Raym.  127,    -       (^)  Salk.  374.    6  Mod.  152* 

(r)  Sa}k.  430.        (^)  I  Ld,  Raym.  125.    3  Lev.  ^63.   2  Salk.  42s, 

(^)  X  Ld,  R-aym.  128.  z  Salk,  428.  Skin,  670.         (/)  2  Sti.  9S3. 


OF     CORPORATIONS.  ^6^ 

Before  the  ftatute  9  Anne,  c.   20,   if  the  party-  to 

whom  the  writ  was  direcS^ed  made  a  return  fufficient  in 

*law,  however  falfe  in  point  of  fa£l,- the  court  could  not 

award  a  peremptory  mandamus,  till  it  was  falfified  in  an 

action  or  information  (a). 

But  by  that  ftatute  it  is-enaSed,  "  that  as  often  as  ir^ 
any  of  the  cafes  of  perfons  having  a  right  to  the  office  of 
'mayor,  bailiff,  portreeve,  or  other  ^offices  in  cities,  bo- 
roughs, and  towns  corporate,  or  to  be  burgefles  or  free- 
men thereof,  who  have  either  been  illegally  turned  out,  or 
have  been  refufed  to  be  admitted,  a  writ  of  mandamus 
fhall  ilTue  out  of  any  of  the  courts  mentioned  in  a  former 
part  of  the  ftatute,  and  a  return  fhall  be  madfe  thereto^  it 
fhall  and  may  be  lawful  to  and  for  the  perfon  and  perfons 
fuing  or  profecuting  fuch  writ  of  mandamus,  to  plead  to, 
or  traverfe  all  or  any  the  material  fadls  contained  within 
the  faid  return;  to  which  the  perfon  or  perfons  making 
fuch  return  fliall  reply,  take  iffiie,  or  demur,  and  fuch  fur- 
ther proceedings, .  and  in  fuch  manner,  fhall  be  had  therein, 
for  the  determination  thereof,  as  might  have  been  had,  if 
the  perfon  or  perfons  fuing  fuch  writ  had  brought  his  or 
their  adion  on  the  cafe  for  a  falfe  return ;  and  if  any  ifTue 
fliall  be  joined  on  fuch  proceedings,  the  perfon  or  perfons 
fuing  fuch  writ,  fhall  and  may  try  the  fame  in  fuch  place 
as  an  iffue  joined  in  fuch  aftion  pn  the  cafe  fhould  or  might 
have  been  tried  :  and  in  cafe  a  verdi(ft  fhall  be  found  for 
the  perfon  or  perfons  fuing  fuch  writ,  or  judgment  given 
for  him  or  them  upon  a  demurrer,  or  by  nil  dicit^  or  for 
want  of  a  replication  or  other^  pleading,  he  or  they  fliall 
recover  his  or  their  damages  and  cofts,  in  fuch  manner  as 
he  or  they  might  have  done  in  fuch  aftion  on  the  cafe ; 

(^a)  II  Co.  99.  b.     1  Keb.  40.     Latch,  ^'i^,    Style,'  48'.    Palm. 

455.    3  Keb..  35o>  859-    Rayra*  ^^i* 

^  fuch 


366  THE    LAW 

fuch  cofts  and  damages  to  be  levied  by  capias  adfathfaci^ 
erfduTHj  fieri  faciasy  or  elegit ;  and  a  peremptory  mandamus 
fhall  be  granted,  without  delay,  for  him  or  them  for  whom 
judgment  (hall  be  given,  as  might  have  been  granted,  if  fuch 
return  had  been  adjudged  infulEcient  y  and  in  cafe  judgment 
fliall  be  given  for  the  perfon  or  perfons  making  fuch  return 
to  fuch  writ,  he  or  they  Ihall  recover  his  or  their  cofls  of 

« 

fuit  to  be  levied  in  manner  aforefaid.    f.  2. 

Bi/T  the  courts  may  grant  fuch  convenient  time  to  the 
parties  to  make  the  return,  ple^d,  reply,  rejoin,  or  demur, 
as  they  (hall  judge  to  be  juft  and  reafonable.     f.  6. 

Provided,  that  if  any  dam^.ges  fhall  be  recovered  by 
virtue  of  th}s  aft,  againft  any  fuch  perfon  or  perfons 
making  fuch  return  to  fuch  writ,  as  aforefaid,  he  or  they 
fhall  not  be  liable  to  be  fued  in  any  other  aftion  or  f^it  for 
the  making  of  fuch  return,    f.  3, 

The  flatute  for  the  amendment  of  the  law  (^y),  and  all 
the  ftatutes  of  jeofayle?,  are  extended  to  all  writs  of  man- 
damus, and  the  proceedings  thereon,    f.  7. 

It  was  formeily  held,  that  when  a  return  to  a  manda- 
mus was  filed,  it  could  not  be  amended,  whether  it  had 
been  filed  on  motion  or  by  the  regular  courfe  of  the  court, 
though  the  application  Mras  made  in  the  fame  term  in  which 
the  return  was  filed;  and  the  reafon  afligned  was  this, 
that  the  rule  "  by  which  the  a£ls  of  the  court  are  fuppofed 
to  remain  in  thebreaft  of  the  court  during  the  (ame  term,'* 
did  not  apply  to  this  cafe,  becaufe  the  return  was  the  adi 
of  others,  and  riot  that  of  the  court  {b).  But  it  has  been 
lately  held,  that  clerical  miilakes  may  be  amended  after 

the  return  is  filed  (r). 

If 

*(a^)  4  Ann.  c.  16.  (*)  Style,  33,  35,8/. 

{c)  Doug..  130,  (135).    A  mandamus  iflfued  to  reftore  R.  F.  in  Icc^ 
et  officium  unius  communis  concilii  et  un^  alderman*  civitat*  Ciceil 


'  > 


OP    CORPORATTIONS.  367 

If,  on  a  proceeding  under  this  ftatute^  no  damages  be 
given  by  the  jury,  the  want  of  it  cannot  be  fupplied  by  a 
writ  of  inquiry,  nor  can  any  judgment  b«  given,  nor  a 
p€re)nptory  mandamus  be  iiTued. 

A  MANDAMUS  having  been^awarded  td  the  corporation 
of  Shrewfbury  {b)y  comrnanding  thena  to  reftore  Mr.  Ki- 
nafton  '*  to  the  office  of  alderman,  they  made  a  return  to 
which  Kinafton  took  five  feveral  traverfes,  and  iflue  being 
joined  on  all  thcfe,  the  jury  found  a  general  verdift  for 
Kinaftoin  on  two,  and  a  fpecial  verdifl:  on  the  three  other?, 
but  found  ho  damages :  on  the  fpecial  verdidl  the  court 
gave  their  opinion  in  favour  of  Kinafton ;  and  a  rule  was 
pHTonounced  for  a  peremptory  mandamus:  but  when  the  , 
plaintiff  prepared  to  enter  up  judgment,  he  difcovered  the 
omiiSon  of  damages,  and  confequently  that  there  could  be 
no  judgment  for  cofts.  To  fupply  tljis  defeft  an  applica- 
tion was  made  fdr  a  writ  of  enquiry,  which  the  court  faid 
they  were  reft  rained  from  awarding,  by  the  words  and  -con- 
ftrudtion  of  the  ftatiite ;  becaufe  by  that  the  traverfes  were' 
given  in  the  room  of  an  aftion  for  a  falfe  return,  and  the 
proceedings  were  ftritStly  confined  to  be  in  the  fame  man- 
ner as  in  fuch  an  action  ;  fo  that  the  queftion  was  reduced 
to  this,  whether,  on  a  fpecial  verditSl  in  an  adion  for  a 
falfe  return,  if  no  damages. had  been  given,  the  court  could 
have  fupplied  that  omiffion  by  a  writ  of  inquiry,  and  as  it' 
was  clear  they  could  not,  fo  neither  could  they  in  this. 

tei\— The  return  was,  that  F.  non  fuit  ele6lu3  et  \Yxh^w%  in  locum 
et  officiiim  communis  concilli  ac  wxf  alderman'  civltat*  Ciceftei\ — TFve 
coiinfel  for  the  mayor  to  whom  the  vvrit'was  adJrefled,  applied  to  the 
cor.rt  foi  leave  to  add  '*  vtl  aiiqnem  eor"— and  as  this  was  ami.ftake  of 
the  ciei  k  of  the  crown  office,  his  infiruflions  being  general,  leave  was 
granted,  1  Show.  273. 

{a)  Vol.  I,  p.  436,  43S, 

Kinafton, 


368  THB     LAW 

Kinafton,  however,  caufed  a  judgment  to  be  entered  iii 
thefc  words.  "  It  is  confidered  by  the  court,  that  the  rec- 
tum is  not  fufficient  in  law  to  bar  or  preclude  the  faid  Cor- 
bet Kinafion  from  being  reftored  to  the  faid  place  or  office 
of  one  of  the  aldermen  of  the  faid  town,  and  that  the  faid 
return,  for  the  reafons  aforefaid,  be  difallowed  and  quafhed." 
On  this  the  corporation  brought  a  writ  of  error  ift  the 
Houfe  of  Lords,  and  there  two  queRions  were  put  to  the 
only  judges  then  attending  {a).  Firft,  Whether,  as  no 
damages  were  given,  any  judgment  could  be  entered  ? 
And,  fecondly.  Whether,  as  no  damages  were  given,  the 
plaintiffs  in  error  would  not  be  fubjeft  to  an  action,  whicb 
would  be  a  double  vexation  ?  To  the  firft  they  anfwered, 
that  no  judgment  could  be  entered,  and  declared,  that  no 
waiver  or  remiffion  of  damages  below  could  have  fet  the 
verdi<Sl  right,  for  then  there  would  be  nothing  for  which  judg- 
ment could  be  given,  the  proper  entry  being  only  a  judg- 
ment for  damages  and  cofts,  and  the  peremptory  mandamus 
going  by  rule  for  him  for  whom  judgment  is  given! — Ta 
the  fecond  they  anfwered,  that  an  aftion  for  a  falfe  return 
might  ftill  be  brought,  as  the  ftatute  took  it  away  only  in 
cafe  any  damages  were  given  by  the  jury  who  tried  the  tra- 
verfe. 

The  judgment  was  therefore  reverfed,  and  a  venire  fa^ 
cias  de  novo  dire£led  to  be  awarded  by  the  court  of  King's 
Bench  {h). 

The  perfon  injured  by  a  falfe  return  may  ftill  have  his 
a£lion,  inftead  of  having  recourfe  to  the  proceedings  given 
by  this  ftatute :  as  an  information  may  ftill  be  granted 

(^)  C.  J.  Willcs,  J.  Denton,  and  B.  Thompfon. 

(Jf)  Kinafton  v.  mayor,  &c.  of  Shrewftury.  Sti*.  1051.  B.  R, 
H- 195,  377.  Vld.  the  proceedings  on  the  'venire  de  no<vo,  in  Andr.. 
85,  104,  171,  310, 

againft 


OF'  CORPORA  T  IONS.  369 

againft  the  perfons  making  the  return,  in  thofe  cafes  in 
which  no  particular  perfon  is  fo  interefted  as  to  bring  an 
aflion  r  but  the  return  mud  be  ffled  and  allowed  before  an 
application  can  be  made  for  the  information  (a). 

This  flatute  extends  only  to  the  cafes  of  officers  and 
freemen  of  corporations ;  and,  therefore,  in  all  other  cafes 
the  proceedings  muft  be  according  to  the  courfe  of  the 
xrommon  law. 

Since  this  a£l,  a  mandamus  is  conflderef  in  the  nature 
of  an  aftion,  and  a  writ  of  error  will  Ue  upon  it  (^).— 
The  plaintifF  had  applied  for  a  mandamus  to  be  admitted 
(or  fworn)  into  the  office  of  mayor  of  Truro;  the  man- 
-damus  had  been  granted,  and  a  return  made  to  it,  to  which 
'the  plaintiff  had  replied,  and  iffue  had  been  joined ;  a  trial 
^t  bar  had  been  had ;  j  udgment  had  been  given  in  the  King's 
Bench  in  favour  of  the  defendant ;  on  a  writ  of  error  in 
the  Exchequer  Chamber,  this  judgment  had  b^en  reverfed, 
iand  the  reverfal  confirmed  in  parliament.  The  plaintiff 
then  applied  for  a  penrnptory  mandamus,  infifting  that  he 
had  now  falfified  the  return,  and  confequently  fet  afide  the 
defendant's  excufe :  to  this  it  was  obje£ted,  that  a  peremp- 
tory mandamus  ought  not  to  ifTue,  unlefs  befide  the  re- 
verfal  of  the  judgment  given  for  the  defendant,  there  be 
^Ifo  a  new  judgment  given  for  the  plaintifi^  which  was  not 
the  cafe  here ;  that  a  peremptory  mandamus  was  a  judicial 
writ,  and  muft  be  founded  on  fome  judgment  eftablifhing 
*the  right  of  the  party  who  applied  for  it.  But  the  court 
were  unanimoufly  of  opinion,  that  a  peremptory  manda- 
mus fiiould  be  awarded,  dbferving  that  it  Was  not  a  judi- 
cial writ  founded  on  the  record,  but  a  mandatory  writ, 
which  the  court  always  granted  when  they  were  fatisfied 

(a)  Salk.  374..    Rex  v.  mayor,  &c.  of  Nottmghaiti,  H,  15  G.  *• 
^ul.  Ni.  Pri.  203.  (b)  8  Mod.  19. 

Vol.  II.  B  b  of 


37^  *"K    LAW 

of  the  right  of  the  party ;  that  the  rpverfal  of  their  judg* 
mcnt  was  a  declaration  of  a  fupcrior  court,  that  the  plain- 
tiff had  a  right,  and  that  there  Vras  no  occaiion  for  any 
new  judgment  (^). 

It  has  been  held,  that  a  writ  of  error  on  a  judgment  in 
prcK:eedings  on  a  mandamus  under  this  a£l,  is  not  a  fuper-^ 
fedeas  to  2.  peremptory  mandamus,  on  the  ground  that  if  it 
were,  the  end  of  the  ftatute  would  be  defeated,  and  the 
officer  who  was  chofen  for  a  year  be  prevented  from  having 
any  fruit  of  his  writ  {b) :  yet  the  propriety  of  this  may 
be  doubted,  as  there  feems  to  be  no  eilential  difference  be- 
tween a  writ  of  error  in  this  cafe,  and  a  writ  of  error  on 
a  judgment  in  an  a£tion  on  the  cafe  f^or  a  falfe  return  {^c)y 
in  which  latter  cafe  it  has  been  feen  {d)  that  a  writ  oi 
efror  is  a  fuperfedeas. 

A  WRIT  of  error  will  not  lie  orl  the  firft  or  on  the/^- 
remptory  mandamus ;  not  on  the  iiril,  becaufe  that  is  in 
•  the  nature  of  an  interlocutory  judgment,  of  which  error 
will  not  lie,  but  the  party  muft  wait  till  the  caufe  is  de- 
termined {e) :  not  on  the  peremptory  writ,  both  for  tech^ 
nical  reaions  and  reafons  of  convenience :  for  technical 
reafons^  becaufe  a  writ  of  error  does  hot  lie  but  on  that 
which  is  properly  a  judgment)  but  the  award  of  a  pe- 
reniptory  mandamus  is  not  in  the  terms  of  the  award  of  a 
judgment ;  there  is  no  ideo  conjideratum  g/?,  which  is  effen- 
tial  to  the  form  of  the  latter :  a  writ  of  error,  too,  is  cal- 
culated to  reftore  the  party  to  fomething  he  has  lofl,  but  a 
mandamus  gives  no  right,  not  even  a  right  of  pofTeffiony 
fo  that  if  the  judgment  fliould  be  reverfed,  ftill  the  fame 
right  would  fubfift,  which  makes  the  revcrfal  fignify  no- 

{a)  Foot  V.  Prowfe.     i  Str.  615,  697;  {h)  i  P.  W.  351. 

(r)  Bui.  Ni.  Pri,  204.  {d)  Ante,  p.  354.    . 

{e)  I  Str.  540, 

4  thing: 


J 


OF    COR  PORATI.ONS.  37I 

thing :.  for  reafons  of  convenience,  bccaufe  there  would  be 
no  end  to  proceedings,  if  every  perfon  who  was  intitled  to 
a  mandamus,  fliould  be  delayed  by  writs  of  error  (^).— - 
Neither  will  a  writ  of  error  lie  on  the  allowance  of  the  r^- 
iurn  to  a  mandamus  (b).  - 

If  a  mandamus  be  directed  to  a  mayor  in  polleffion, 
commanding  him  to  admit  another  as  mayor,  the  mayor 
in  pofTefHon,  it  is  faid,  cannot  have  a  rule  to  fee  the  char- 
ter, on  the  fuggeflion  that  the,  party  applying  to  be  ad- 
mitted was  not  duly  ele£led,  becaufe  he  may  return  that 
he  was  not  elected  ^  and  in  an  a6tion  for  a  faife  return  he 
ihall  have  a  rule  to  fee  the  charter  and  take  a  copy  (c).  ■ 
But  this  feefns  rather  a  hard  meafure  of  juftice,  to  deny 
the  means  of  afcertaining  the  truth  of  what  he  is  to  return> 
and  when  he  has  at  his  hazard  made  a  falfe  return,  give  him 
the  means,  perhaps,  of  conviding  himfelf,  whereas  if  the 
fame  permiiHon  had  been  granted  to  him  at  iirfl,  he  might 
have  made  a  different  and  a  true  return  i  or  he  might  have 
ieen  that  he  had  no  ground  for  refufmg  obedience  to  the 
writ,  and  might  have  admitted  the  party  complaining 
without  rcfiftance. 

It  is  laid  down  as  a  general  rule,  that  a  mintfterial 
officer  muft  obey  the  writ. — Thus,  where  a  mandamus 
was  dire<Eled  to  the  archdeacon  of  Colchefter,  command- 
ing him  to  fwear  Rodney  Fane  into  the  office  of  church- 
warden, and  he  returned,  that  before  the  coming  of  the 
writ,  he  received  an  inhibition  from  the  bifliop  of  London, 
with  a  fignification  that  the  bifhop  b^d  taken  upon  himfelf 
to  a£l  in  the  premifes :  befide  the  objection  that  it  did  not 
appear  that  the  town  of  Colchefter  was  within  the  diocefe 
of  the  bifhop  of  London,  of  which  the  court  could  not 

{a)  I  Str.  543.    8  Mod.  17,    1  P.  W.  349,    Fortefc.,329- 
ib)  I  Str.  628.  (0  Vid.  Salk.  430. 

«  B  b  2  juJicially 


372  THE    LAW 

judicially  take  notice,  which  alone  was  thought  a  fufticient 
objeflion  to  the  return  ;  it  was  further  held,  that  the  arch- 
deacon was  but  a  minifteria)  officer,  and  was  bound  to 
execute  the  writ,  whether  it  would  be  of  any  validity  or 
not(^). 

So,  to  a  (imilar  mandamus  it  being  returned,  that  before 
the  coming  of  the  writ  he  had  fworn  in  another ;  this  was 
held  a  bad  return ;  for  that,  be  the  right  which  wiy  it 
might,  the  officer  was  to  db  his  duty  (b). 

So,  where  a  mandamus  commanded  the  defendant  to 
fwear  in  Lodge  churchwarden  of  Temple  Holy  Crofs,  in 
feriftol,  and  he  returned,  that  in  a  fult  depending  in  th^ 
bifliop*s  court,  he  himfelf  had  decreed  in  favour  of  Wiit^ 
church  J  and  that  an  appeal  was  lodg^ed  and  Was  depending : 
this  return  was  qualhed,  and  a  peremptory  mandamus  was 
awarded  (f). 

To  a  mandamus  direfted  to  Dr.  Ward,  commanding 
him  to  admit  Henry  Dryden  to  the  office  of  deputy  re- 
gifter  of  the  court  of  the  archbilhop  of  York,  the  doftoi: 
returned  that  John  Shaw  had  formerly  been  appointed 
deputy,  and  had  been  admitted  and  executed  the  office  till  fuf- 
pended,  for  the  reafons  fet  out  in  the  return,  for  five  years, 
for  which  time  Jofeph  Leech,  a  notary  public,  had  been 
appointed  before  Dryden  had  been  conllituted  deptity. 
That  Shaw  appealed,  and  in  that  appeal  alleged,,  thatth^ 
23d  of  May,  172S,  he  refigned  the  office,  and  that  Dr. 
Sharpe  had  appointed  William  Smith  to  be  deputy  :  that 
delegates  were  appointed,  who,  on  the  23d  of  OSober, 
1728,  iffued  an  inhibition  to  Dr.  Ward,  as  commiflkry, 
that  jpending  the  appeal  he  fhould  do  nothing  to  the  pre- 

(A)'Rex  V.  SympTon.  i  Str.  6oS«  2  Ld.  Raym.  1379!  8  Mod.  325. 

(^)  Taylor  v,  Raym.  cited  2  Str.  895. 

(c)  Rex  V.  ReyneII>  Tr.  8,  9  G.  2,  B.  R.  cited  3  Bur.  1422. 

3  judice 


OP    CORPORATIONS^.    '  373 

judice  of  th^  appellant ;  that  the  appeal  remained  undeter- 
mined i  and  that  for  thefe  reafons  he  could  not  admit  Dry- 
deii  to  be  deputy  of  Dr.  Sharpe. 

The  court  foid  this  return  could  not  be  fupported ;  thaj 
the  efFeft  of  the  mandamus  was  not  to  give  a  right,  but  to 
isnable  the  party  to  affirt  his  right  *,  that  a  minifterial  of)i« 
cer  muft  execute  the  writ,  let  the  confequence  be  )vhat  i^ 
might ;  and  that  to  allow  to  (he  power  of  inhibitions  thp 
eiFe£l  for  which  the  return  contended,  would  be  too 
much  (<?). 

A  MANDAMUS  was  diredcd  to  Dr.  Harris,  cpmmiflary 
of  the  conf^ftorial  and  episcopal  court  of  the  bifliop  of 
\Vinchefter,  for  the  parts  of  Surrey ;  fetting  forth,  that 
Henry  Griffith  and  Thomas  Garn/sr  were  in  Eafter  wepjf 
then  laft  paft  .d^ly  nominated  and  ele(^ed  churchwardens 
of  the  parilh  of  St.  Olave,  Southwark,  to  fer ve  for  oxip  , 
whole  year  then  next  enfuing,  according  to  the  ancient 
ufage  and  cuftom  of  the  faid  parifb  i  and  that  they  had 
pften  oflferjed  themfelyes  to  the  do<3Kjr  to  take  their  corpo- 
ral oacb  as  churchwardens,  and  requeft^d  to  be  by  t^ioi 
f^orn  and  adpiitted  into  the  faid  place  and  office,  which 
oalji  the  do£lor  refuied  to  adminifter  to  them :  the  wrjt 
therefore  commanded  him,  without  delay,  to  fwear  ai^i 
admit,  or  cauJfe  to  be  fworn^  and  adpiiitted,  the  (aid  Henry 
Griffith  and  Thpm^as  G.^xnfir  into  the  faid  place  and 
office,  together  with  all  the  liberties  and  priviieges  there- 
to belonging  and  a^ppertaining ,  or  jbrw  (:<^ufe  U  th* 
contrary. 

A  Z.IKE  mandamus  was  alfo  dire^ed  to  him,  to  fwear 
gnd  admit  David  Griffin,  Philip  .Cox,  Ifaac  A^pl^bee, 
and  William  Strickland  inio  th^fctme  office. 

(/»)  Rex  V.  Ward,  *  Str.  893.    Ante,  p.  357.    i  Barnard.  K.  B« 

B  b  3  To 


o^^  'THE     LAW 

To  the  firl!  writ  he  returned,  that  there  were  two  caufes 
depending  before  him,  which  had  afterwards  been  confoli- 
datcd  into  one ;  in  which  it  was  difputed  "  who  were  elected 
churchwardens?"  The  former,  on  the  promotion  of  Grif- 
fin, Cox,  Applebee,  and  Strickland,   afferting  themfehet 
to  have  been  duly  eledled,  and  praying  to  be  fworn ;  the 
latter  on  the  promotion  of  Griffith  and  Garner  and  two 
others,  againft  Griffin,  Cox,  Applebee,  and  Strickland: 
and  that  the  parties  on  each  fide  reciprocally  denied  the 
others  to  be  duIyeleSed:  that  for  thefe  reafons  he  could 
not,  conjtftently  with  his  duty  and  the  law  andpraSiice  of  the 
ipifcopal  courts  fwear  and  admit,  or  caufe  to  be  fworn  and 
admitted  the  faid  Henry  Griffith  and  Thomas  Garner  into 
the  place  or  office  of  churchwardens  of  the    parifh  of 
St.  Olave,  Southwark,  ««ri/ it  (hould  have  been  judicially 
determined  in  the  caufe  then  depending  before  him,  ac-» 
cording  to  allegations  given  and  proofs  made  thereon, 
**  that  the  faid  Kenry  Griffith  and  Thomas  Garner  weris 
duly  eledled  into  fuch  office:"  all  and  fmgular  which  faid 
things  he  fubmitted  to  the  judgment  of  the  court." 

The  return  to  the  other  writ  was  to  the  fame  efFed, 
only  that  after  the  words  **  were  duly  clefted  into  fuch 
office,"  was  added  "  by  a  majority  of  legal  votes." 

Lord  Mansfield  faid,  "  this  is  an  indecent  return.-^ 
He  has  no  ri^ht  to  try  the  queftion  \  he  cannot  try  the 
legality  of  the  votes.  The  King's  writ  commands  him 
to  admit  and  fwear :  and  he  muft  obey  it." 

It  being  then  obferved  that  there  were  two  crofs  manr 
damus^s,  and  that  he  did  not  know  which  tp  obey ;  the^ 
court  anfwered,  '*  he  muft  obey  both.  It  is  without  pre- 
judice to  the  right  of  either  claimant." 

The  court  then  propofed,  and  the  parties  confented,  to 
try  the  right  in  a  feigned  iiTue  s  and  that  the  execution  of 

the 


OF    CORPORATIONS. 


375 


the  peremptory  mandamus  fhould  \iQ  fufpended  t\\\  zfi^t  the 

trial  {a). 

But  if  this  rule,  "  that  a  minifterial  officer  muft  at  al}r 
events  obey  the  writ,"  be  taken  in  the  ftridl  literal  fenfe 
of  the  words,  it  will  involve  thi^  abfurdity,  that  no  return 
can  be  made  to  the  writ  at  all ;  which  contradifts  the  tenor 
of  the  writ  itfelf:  for  by  that  he  is  commanded  in  the  al- 
ternative to  do  the  thing  required,,  or  tojhew  caufe  to  thf 

contrary* 

In  faa  there  have  been  many  cafes  in  which  a  return  to 

fuch  writs  has  been  allowed. 

In  the  cafe  of  the  King  and  White,  the  return  to  a 
mandamus  commanding  the  defendant,  as  archdeacon,  tp 
fwear  a  churchwarden,  the  return  was  nonfuit  eleSius^  on 
which  Mr.  Juftice  Fortefcue  faid,  "  that  it  was  fettled, 
and  had  been  often  ruled>  that  the  archdeacon  could  not 
judge  of  the  eleftion,  and  therefore  this  return  was  bad  :'^ 
pa  which  a  peremptory  mandamus  was  granted.  *'  Bi|t 
note,^^  fays  Lord  Raymond,  who  reports  the  cafe,  "  this 
was  certainly  wrong,  for  the  return  was  a  good  return,  and 
has  often  been  made  to  fuch  writs  of  mandamus,  and  ac- 
tions brought  upon  the  return"  («);  and  in  a  fubfequent 
cafe,  which  occurred  the  fame  year,  the  authority  of  thi§ 
cafe  of  White  was  again  denied.  This  was  a  mandamus 
direSed  to  Dr.  Harwood,  as  commiffary  of  the  de^r)  and 
chapter  of  St.  PauUs,  commanding  him  to  fwear  William 
Folbigg,  one  of  the  churchv^ardens  of  the  parifc  of  Saint 
Giles,  Cripplegate,  London :  the  defendant  returned  non 
fuit  eleSius^  on  which  it  was  contended  on  behalf  af  Fol- 
bigg, that  the  return  was  bad ;  that  the  archdeacon,  who 
was  only  to  obey  the  writ,  could  not  judge  of  the  eleaion, 


{a)  Rex  V.  Dr.  Harris,  3  Bur.  1420. 
(>)  Reic  V.  Whiter  %  Ld.  Raym.  I379- 

^B  b  + 


and 


376  THE    LAW 

and  that  the  cafe  of  he  King  and  White  was  a  dire(£l  au« 
thority  againft  the  return*  ^^  But  both  my  brother  Reyr« 
nolds  and  myieif,''  fays  Lord  Raymond,.  ^^  todc  the  return 
to  be  good.  But  upon  the  importunity  of  the  counfel  fbt 
Folbigg,  and  their  preffing  the  authority  of  the  King  and 
White,  and  no  counfel  for  the  defendant  appearing,  a  rule 
was  made/or  a  peremptory  mandamus^  mfiy  at  which  after* 
Ynxi%  my  brother  Reynolds  and  I  were  much  dii&tisfied  i 
but  the  counfel  for  the  defendant  at  another  day  coming  to 
fiiew  caufe  againft  the  rule,  we  difetiarged  it.  And  the 
court  not  being  unanimous,  it  was  ordered  to  come  on 
again  in  the  paper.  But  I  nerer  heard  it  (lirred  again.— 
But  there  can  be  no  doubt  but  fuch  a  return  is  good*'  {a). 

SoMB  other  cafes  will  be  mentioned  by  and  by,  in  con- 
firmation of  Lord  Raymond's  opinion.— Perhaps  the  ruk 
may  be  more  iatisbfkorily  expreiled  in  thefe  words.^— ^ 
^^  That  a  miniftefial  oiScer  to  whom  a  mandamus  is  diw 
reded,  muft  not  excufe  himfelf  from  executing  the  writ^ 
by  returning  fads  collateral  to  liiokfuggejied  in  die  writ> 
or  by  denying  the  legal  confequence  of  them  \  but  tl^at  he 
may  dire<9iy  deny  their  truth." 

In  general,  when  the  return  to  a  mandamus  is  adjudged 
infufficient^  a  peremptory  mandamus  iflfues  (b).  But  if, 
notwithflanding  the  infufficiencyof  the  return  to  a  man^ 
damus  to  be  reflored,  the  party  applying  for  it  appear  to 
have  no  right,  the  court  will  not  grant  the  peremptory 
writ.— Therefore,  where.it  was  &t  forth  by  a  nuiyor's 
return  to  a  mandamus  commanding  him  to  reftore  a  bur« 
gefs  in  the  corporation,  "  that  the  complainant  had  ap- 
plied to  him  to  be  difinifled  from  the  office  of  burgefs>  and 
that,  at  the  deflre  and  requeft  of  the  complainant,  he,  tbs 
mayor,  had  done  accordingly  :  it  was  objeded  that  this 

{a)  Rexv.  Harwood^  2Ld.  Raym.  1405.  (fi)  1  Sid.  aS^.^ 

return 


OF   CaRPORATIONS*  37^^ 

that  tkis  returfi  did  not  let  fotlk  how  tbe  corponktkm  com- 
menced, whether  by  letters  patent,  or  prefcripti0%  nor  that 
the  mayor,  ke.  had  any  power  to  cUsfiraochife*  But  the 
court,  on  the  principle  above  ftated>  rdiifed  to  reflore  the 

party  (a). 

So,  where  it  appeared,  that  the  perfon  ap^dying  to  be 
reilored,  had  deferted  his  office,  and  that  it  was  filled  up, 
though  it  was  returned,  that  he  wss  for  diat  caiife  amayed 
by  the  common  council,  wichout  ftating,  that  they  had  a 
power  fo  to  do  either  by  charter  or  prefcription  (b). 

If  a  mandamus  come  fo  late  to  the  party  to  whom  it  is 
dire£):ed,  that  he  has  not  time  to  eicecute  it,  he  may  return 
that  as  an  excure,  and  it  will  be  allowed  as  a  good  rec- 
tum (f). 

The  return  muft  give  a  ilreQ.  anfwer  to  the  fuggeftion 
of  the  writy  therefore,  where  a  mandamus  was  dire£ked  to 
the  mayor  of  Barnftaple,  commanding  him  to  reftore  a 
perfon  to  the  office  of  recorder,  and  be  returned  quod  tiM 
canjlat  nobis^  that  he  was  ever  elected,  this  return  was  ad- 
judged void,  and  reftiiution  awarded  (i/). 

It  has  been  generally  held,  that  where  a  mandamus  to 
admity  only  fuggefts  that  the  party  was  ele<fted,  the  anfwer 
muft  be,  that  he  was  not  ele^ed,  and  nXM  that  he  was  not 
duly  eleAed,  becaufe  that  is  not  a  dire£l  denial  of  an  elec- 
tion in  point  of  fa6l;  but  that  where  the  writ  fuggefty, 
that  the  party  applying  to  be  admitted  was  dubf  t\ecktdj 
a  return  that  he  was  not  duly  ele<^ed  is  fufficiqnt,  that  bein^ 
a  dire<^  anfwer  to  the  fuggeftion  of  the  writ  {e)* 

{a)  X  Sid.  14.  - 

(^}  Rex  V.  mayor,  &c.  of  Newcaftle,  Mich,  ix  G.  2,  Bui.  Ni.  PH. 
207.  (f)  »  Ld.  Raym.  ?479i »  Str.  763f  {d)  Raym.  X53. 

(#)  Vid.  SaUt.  434.  C^rtb.  170.  i  Show.  253.  i  K«b,  733- 
z  Sid.  109,  axo.    7  Mod.  ^3*  v 

So, 


\ 


37*  THE    LAW 

So,  where  a  mandamus  commanded  to  fwear  A.  and  B. 
cEurchwardens,  fuggcfting,  that  they  were  debtto  modo  de£ii^ 
and  the  return  was  quad  nonfuerunt  debito  modo  eleSiiy  but 
did  not  fay  mc  eorum  aliquh ;  this  was  held  a  good  return, 
becaufe  the  writ  did  not  command  the  defendant  to  fwear 
ene  of  them,  \fboth  were  not  chofen^  and  therefore  this  was 
an  anfwer  to  the  writ(^i).. 

B(JT  in  a  cafe  which  occured  the  very  next  yt2x{b) 
where  the  writ  and  the  return  were  in  the  very  fame 
terms  as  here,  the  return  was  quaChed  :  and  it  was  faid  that 
the  defendant  muft  comply  with  the  writ  as  far  as  he 
could;  that  if  one  only  was  duly  chole;),  he  ought  to  be 
fworn :  that  where  the  parfon  claimed  to  choofe  one,  and 
the  pariflbioners  infilled  on  choofing  both,  and  adually 
chofe  two  by  equal  votes,  fo  that  the  defendant  did  not 
know  which  to  fwear,  he  might  return  the  matter  fpeciallyr* 
At  laft,  by  the  direSion  of  the  court,  it  was  agreed  to  try 
.  the  queftion  in  a  feigned  a£tion« 

Where  a  mandamus,  fuggefting  that  one  Matthew 
Hubbard  was,  in  Eafter  week,  chofen  churchwarden  of 
Hefton,  commanded  the  defendant  to  fwear  him  in,  or 
fliew  caufe  to  the  contrary ;  the  defendant  returned,  that 
Hubbard  was  not  elected  in  Eafter  week:  it  was  objefl- 
ed,,that  thi,s.  confined  the  eledion  to  a  particular  time,  and 
was  in  the  nature  of  a  negative  pregnant,  as  he  might  have 
been  chofen  at  fome  other  time.  But  the  court  overruled 
the  objefltion,  as  the  return  followed  the  fuggeftion  of  the 
writ(0. 

To  a  mandamus  commanding  a  corporation  to  reftore 
a  man  to  the  place  of  capital  burgefs,  it  is  not  a  fufficient 

ijC)  7  Mod.  83,  2«Salk.  433, 434— Mich,  j  Ann. 
(h)  Hil.  a  AnB.6Mod.    aLd.  Raym.>ioo8*    6Mod.S9.    3  Salk. 
S8.  (0  Rex  V.  Sir  Henry  Penrice,  %  Sir,  i»35. 

return 


OF  Corporations.  379 

return  of  a  refignation,  that  he  confented  to  be  turned 
out ;  it  muft  be  exprefsly  faid,  that  he  refigned,  and  that 
they  accepted  his  refignation  (j). 

To  a  mandamus  to  adm'it  a  town  clerk,  it  was  returned, 
that  he  had  not  taken  the  oaths  prefcribed  to  be  taken  by 
the'ftatute  13  Car.  2,  c.  i,  before  the  mayor j  the  return 
was  held  defedive,  becaufe  he  might  have  taken  them  be- 
fore two  juftices  of  peace,  who,  in  default  of  the  mayor, 
are  empowered  to  tender  and  adminifter  the  oaths  (^), 

A  MANDAMUS  was  direfted  to  the  baih*iFs  of  Morpeth, 
commanding  them  to  reftore  a  perfon  to  the  office  of 
under-fchoolmafter  of  a  grammar  fchool,  founded  by  Ed- 
ward the  fixth  :  they  returned,  that  he  had  not  taken  the 
oaths  appointed  -to  be  taken  by  the  ''i  G.  i,  for  which 
reafon  they  could  not  reftore  him :  this  return  was  held 
infufficient,  becaufe  there  is  an  oath  {c)  in  that  aft  which 
he  was  not  bound  to  take  {d).  They  fliould  have  faid, 
that  he  had  not  taken  the  oaths  of  allegiance,  abjuration, 
and  fupremacy,  or  the  oaths  required  to  be  to  be  taken  by 
a  fchoolmafter. 

The  return  muft  anfwer  the  material  part  of  the  writ 
with  fuch  exa<9t  certainty,  that  the  court  may  be  able  tp 
determine,  whether  it  be  a  fufficient  caufe  or  not  for  not 
doing  the  thing  commanded.  It  is  not  fufficient  that  the 
profecutor  pf  the  writ  qiay  be  able  to  falfify  the  return  in 
an  adtion  for  a  falfe  return. 

A  MANDAMUS   was  direfted  to  the  mayor,   bailiffs, 

and  all  the  principal  burgefles  of  the  town  of  Abingdon, 

'.  except  R.  and  S.  fetting  forth  the  conftitution,  by  which 

the  commonalty  were  to  eleft  two  out  of  the  capital  bur- 

geiTes,  of  whom  the  mayor,  bailiffs,  and  capital  burgefTes 

(^z)  Reg.  y.  Lane^  2  Ld.  Raym.  1304.  (^}  5  Mod.  318. 

(0  The  Scotch  oath.       {d)  Rexv.  Ballivos  de  Murpeth>  i  Str.  58. 

were 


380  T  II  £     I  AW 

w«rc  to  cle^  one  to  b^  mayor  for  the  cnfuing  year,  and 
fuggeftiog,  that  R.  and  S.  were  capital  burgefles,  a|id  hac) 
been  chofen  by  the  commonalty  ^  it,  therefore,  commanded 
the  defendants  to  ele<El  one  of  them  accordingly,  and  the 
mayor  to  fwear  him  into  the  offi<;e.  Tliey  returned  the 
ftatute  13  Car.  2,  ft.  2,c.  r,  and  that  within  twenty  years 
next  after  the  25  th  of  March  1663,  R.  and  S.  had  been 
elecSled  to  the  oiEce  of  capital  burgefles,  but  that  within  a 
year  before  their  election,  they  had  not  received  the  facra* 
ment,  by  reafon  of  which  their  eletfltoA  was  void,  and  they 
u;ere  net  capital  burgejfes.  The  court  held  this  return  un- 
certain :  the  writ,  they  obferved,  fuppefcd  the  plaintifF*s 
capital  burgefles,  which  was  not  anfwered  by  the  fpeciat 
matter  of  the  return ;  for  though  the  firft  eleiflton  might  bp 
void,  yet  they  might  afterwards  have  qualified  themfelves, 
and  been  chofpn  again,  and  there  was  nothing  in  the  returp 
which  excluded  the  intendment  of  a  fubfequentele(Slion(tf). 
So,  where  a  mandamps  commanded  the  defendants  to 
admit  the  plaintiff  to  his  fraedom ;  to  which  they  returned, 
that  therc  were  five  cpurt  days  held  yearly,  at  particular 
times^  in  the  Guildhall,  for  the  admiflion  of  freemen,  and 
other  purpofes,  on  which  days  all  perfons  intitled  to  their 
freedom,  ajid  defiring  admiffion,  had  been  admitted ^  that 
on  the  z6th  of  April  ia  court  was  held,  of  which  notice  had 
been  before  given  to  the  plaintiff,  but  that  he  did  not  then 
appear,  and  therefore,  he  could  not  be  admitted :  this  re- 
turn was  held  infufficient,  becat^fe  a  peribn  qualified  had  a 
right  to  be  admitted  whenever  he  denianded  it,  unlefs  he 
were  cpnfined  to  particulars  days ;  and  here  it  was  not 
faid,  that  the  five  days  were  the  only  days  on  which  he 
could  he  admitted  (^}. 

(a)  Rex  V.  lyiayor  of  Ablngdoai,  %  SaJk.  43*,    i  Ld.  Ra^rn.  559. 
{b)  Rest  V.  WJaiikia,  Awk.  i.  - 

But, 


OF    CORPORATIONS.  38r 

But,  where  the  writ  ftiggefted  that  the  plaintiiF  was 
iu\y  tleHtdy  fworn  and  admitted  into  the  office  of  coix>^ 
ner,  without  mentioning  any  time,  and  commanded  the 
defendants  to  reftore  him :  to  which  they  returned,  that 
tht  plaintifF  on  the  29th  of  Auguft  le  G.  2,  was  duty 
chofen  coroner }  but, that  neither  at  the  time  of  his  (aid 
eleftion,  nor  fittce  that  time,  nor  y€t  was  he  admitted  or 
fworn  into  the  office,  ahd  that,  therefore,  they  could  not 
redore  him  :  this  return  was  held  good,  and  the  admiffion 
of  the  party  fiiilicichtly  denied  5  for  that  though  the  wonift 
^'  nor  fince  that  titAe"  comprehended  only  the  intermedin 
ate  fifne  between  the  «le£H6n  and  te/ie  of  the  writ,  and 
confequently  would  not  alone  have  been  fufficient,  yet  tte 
fubfequent  Words,  **  nor  is  he  yet  admitted^"  denied  his 
admiffion  at  any  time  whatever.  It  was  added,  that  in  tht 
cafe  of  Abingdon,  had  the  return  further  alleged,  that  the 
party  had  not  yet  received  the  (acrameht,  it  would  have 
been  good(a). 

To  a  matidamus  to  proceed  to  an  ele£Kon,  it  is  a  good 
return,  that  before  the  coming  of  the  writ  an  eleftion 
had  been  regularly  had. 

Ou  a  fuggcftiSn,  that  no  portreeve  was  eledied  for 
the  borough  of  St.  Michael's  on  the  charier  day,  a  mati- 
damus  was  awarded,  direfted  to  the  fteward  of  a  coflrt 
leet,  in  the  borough,  by  which  he  was  commanded  to 
hold  a  court  leet,  and  impannel  and  fweat  a  jury ; 
and  to  charge  the  jury  to  ele<9:  and  fwear  fonle  perfoli 
into  the  office  of  portreeve  of  the  faid  borough :  the 
fteward,  in  his  Return,  flated,  "  that  iil  obedience  to 
the  command  of  the  writ,  he  had  holden  a  eou^t  leet, 
and  impannelled  and  fworn  a  jury  J  and  had  chafgrf  the 
jury  to  ele£t  and  fwear  fome  pierfon  into  the  office  of  por- 

ia)  Itex  v.  mayor,  &c.  of  Lynn,  Arrd.  105. 

treeve 


L 


38a  T  H  B      LAW 

treeve  of  the  borough :  and  that  it  was  foundby  the  jury, 
that  J.  S.- was  duly  eleftcd  and  fworn  into  the  ofiice  of 
portreeve  of  the  borough  on  the  charter  day;  and  that, 
therefore,  no  perfon  could  be  elected  and  fworn  into  the 
office  of  portreeve  of  the  borough  as  by  the  writ  was  com- 
manded. 

It  was  objedled  to  this  return,  that  it  was  argumenta- 
tive, and  not  pofitive.  But  the  court  was  of  opinion,  that 
it  was  fufficiently  pofitive,  as  to  the  principal  fsi&j  ^  that  a 
perfon  was  duly  eledbed  and  fworn  into  the  office  of  por- 
treeve of  the  borough  on  the  charter  day."  If  this  was 
true,  there  ought  not  to  be  any  ele£lion;  if  it  was  not  true, 
an  adlion  might  be  brought  for  a  falfe  return  (a).. 

But,  to  a  mandamus  to  admit,  it  is  not  a  good  return, 
that  before  the  coming  or  ifTuing  of  the  writ,  another 
perfon  was  chofen  and  admitted  into  the  office. 

A  MANDAMUS  was  directed  to  Charles  Luxon,  mayor 
of  the  borough  of  Boffiney  or  Tintagel,  in  Cornwall,  to 
fwear  Ambrofius  Manaton  into  the  office  of  mayor,  to 
which  he  had  been  elecSled  :  Luxon  returned,  that  before  the 
'  ifTuing  of  the  writ,  fpecifying  the  day,  he  the  faid  Charles 
was  removed  from  the  place  of  mayor,  and  one  William 
Amy,  then  chofen,  admitted  and  fworn,  and  from  that 
time  hucufquefutt  et  adhuc  eft  major  burgi  pn^di^t\  and  by 
reafon  of  his  faid  office  had  the  cuflody  of  the  common 
feal,  for  which  reafon  the  faid  Charles  could  not  fwear 

Manaton  as  the  writ  required. Two  jufUces,  Dolben 

and  Raymond,  thought  the  return  infufficient,  becaufe  it 
did  not  fay,  that  the  new  mayor.  Amy,  was  duly  elefted, 
and  it  might  have  happened,  that  he  was  chofen  out  of 
time,  and  not  according  to  the  charter:  But  Scroggs, 
G.  T«  and  Jones,  J.  thought  that  the  fuggeftion  that  Amy 

(a)  Kex  V.  Williams,  Sayer.  140 

was 


OF     CORPORATIONS.  383 

was  chofen,  neceflarily  implied,  that  he  was  duly  ele<Sled ; 
and  that  if  an  adtion  were  brought  for  a  falfe  return,  and  on 
an  ifliie  of  eledled  or  not  eleSed,  it  fhould  appear,  that  he 
was  not  duly  elefted,  the  plaintiff  would  recover.  But  as 
the  court  was  equally  divided,  a  peremptory  mandamus 
was  not  awarded  {a). 

But  afterwards,  in  the  cafe  of  the  borough  of  Saltalh, 
a  return  exadlly  fimilar  being  made  to  a  fimilar  mandamus^ 
the  whole  court  thought  it  infufficent,.  becaufe  it  did  not 
anfwer  the  gift  of  the  writ :  for,  by  fuch  a  return,  any  of- 
ficer might  be  kept  out  of  oiSice,  as  the  perfon  whofe  bufi- 
nefs  it  was  to  return  the  writ,  might  procure  another  to 
be  chofen  before  the  party  intitled  to  be  admitted  could 
procure  a  writ;  and,  therefore,  the  defendant  ought  to 
have  returned,  th&t  the  party  profecuting  the  mandamus, 
had  never  been  eledled,  who  might  then  have  had  an  ac- 
tion for  a  falfe  return.  On  thefe  principles  the  court  a- 
warded  a  peremptory  mandamus  to  fwear  in,  and  admit 
the  complainant  (^). 

If  the  fuggeftion  of  the  writ  be  falfe,  in  not  truly  ftating 
the  conftitution  of  the  corporation,  it  is  not  fufEcient,  that 
the  return  ftate  the  conftitution  as  it  really  is:  it  muft  pofi- 
tively  deny,  that  it  is  as  fuggefted  in  the  writ.  There- 
fore, where  a  mandamus  dire£l:ed  to  the  bailiffs  and  bur- 
geffes  of  Maiden,  reciting,  '^  that  they  ought  to  choofe 
yearly  two  bailiffs,  out  of  fach  as  had  not  been  bailiffs  for 
three  years,"  commanded  them  to  proceed  to  an  ele(9tion  : 
and  they  returned,  that  their  conftitution,  by  letters  patent, 
was,  that  they  fhould  choofe  ex  aldermennisy  and  that  they 
had  chofen  VNO^fecundumformamy  et  ejfe£lum  Uterarum  pa* 

{a)  Raym.  365^  (*)  Raym.  43X;4'3^»  SirT.  Jones  177. 

tentium 


384  TRt    LAW 

leftiium  genenXly ;  this  was  hdi  tnriHSctenf,  bdcauie  it  did 
not  deny  the  conftitution  ftated  in  the  writ  (a). 

It  has  been  feen  (b)y  that  a  corpors^tion  may  pofTds  a 
power  to  remove  at  plea:rure:  as  a  confequcnce  from 
thence,  itfoHows,  that  in  a  retcim  to  a  mandamus  to  re* 
ftore,  they  may  allege  this  power,  and  diat  they  have  ex- 
ercifed  it :  but  they  muft  allege  it  in  dired  terms,  and  not 
by  way  of  recital  in  a  charter.  They  muft  Kkewife  rely 
on  it  as  die  only  reafon  of  their  havmg  removed  the  party, 
and  not  ftate  particular  redbns :  for  if  thefe  be  infufS- 
cient,  the  court  will  award  a  peremptory  mandamus  (c). 

But  after  baving  reftored  the  party  in  obedience  to  the 
writ,  they  may  immediately  remove  him  without  affighing 
any  other  reafon  than  their  own  wrH; — So,  where  they 
bave  removed  a  peffon  for  fuftclent  reafons,  but  a  pe- 
remptory mandamus  has  been  awarded  on  account  of  tiie 
infufficient  manner  in  which  thefe  reafons  have  been  ex- 
prefled  in  the  return,  they  may  immediately  after  his  re- 
ftoration  remove  him  for  the  fame  reafons  as  before  (d). 

To  a  mandamus  to  reftore  a  jurat  of  Maidftone  to  his 
place,  it  was  returned,  that  by  their  incorporation  they  bad 
power  to  eleft  jurats  for  life,  if  it  Abuld  feem  expedient : 
that  they  had  elected  the  party  applying  to  be  reftored, 
and  iliat  afterwards  it  feemed  expedient  to  them  to  turti 
him  out,  which  they  had  accordingly  done.  Thisw^ 
held  infufficient,  becaufe,  thoug|h  they  had  a  power  to  ele^l 
for  life,  if  it  feemed  expedierit,  it  did  not  follow,  that  if 
they  did  aftually  eleft  for  lile,.they  had  a  power  to  remove 
whenever  they  pleafed  (^). 

(^z)  2  Salk.  I  Ld.  Raym.  481. 

(b)  Vid.  1  Ld.  Raym.  710,  ?.ntt:,  p.  $9,  59. 

(0  Sfitk.  4«9, 435,^  Ld.-Rflym.  1140..       (^  al/d.Raybi.xaS^. 
(ir)  I  Lev.  148. 

The 


OF    CORPORATIONS.  385 

The  return  muft  anfwer  the  fuggeftion  of  the  writ,  not 
in  words  only,  but  iniubftances  for  if  it  be  true  in  words 
only,  and  not  in  fubftance,  an  a£lion  will  lie  for  a  falfe  re- 
turn (<7).       ^  .  V 

A  MANDAMUS  d\tc&.ed  to  the  mayor  and  burgefles  of 
Lyme  Regis,  reciting,  that  David  Robert  Mitchell  had 
been  duly  eleiSled,  admitted,  and  fworn  a  capital  burgefs  of 
the  borough,  and  that  they  had  removed  him  without  any 
juft  or  reafonable  caufe,  commanded  them  to  reftore  htm, 
or  (hew  caufe  to  the  contrary  :  to  this  they  returned,  that 
Mitchell  was  not  duly  ele£led,  admitted,  and  fworiiy  a  ca- 
pital burgefs  of  the  faid  borough,  and  therefore  they  could 
not  reftore  him,  or  caufe  him  to  be  reftored,  • 

Lord  Mansfield,  when  the  cafe  was  firft  argued, 
faid,  it  appeared  to  him  to  be  fufHcient  if  the  fuggeftion  of 
the  writ  lyas  fully  denied,  whatever  that  was.:  that  he  was 
not  thoroughly  fatisfied  of  the  fenfe  and  meaning  of  the 
diftin<ftion  between  "  eleded*'  and  "duly  ele<a^d:"  it 
feemed  to  be  a  contradidion  to  fay,  that  a  man  had  been 
eledled,  and  at  the  fame  time  to  fay,  that  he  had  not  been 
^z/i^  elevfted :  they  feemed  to  him  to  be  the  fame :  on  an 
iftue  to- try  if  a  man  had  been  ele£ted,  he  muft  prove  a  due 
eleAion.  In  general,  indeed,  where  a  perfon  took  upon 
himfelf  to  fuggeft  what  he  was  not  bound  to  do,  that 
might  be  denied :  but  another  thing  ftruck  him  at  prefent ; 
the  return  fbould  be  fuch  as,  if  true,  would  {hew,  that  the 
party  had  no  right  to  be  reftored,  and  therefore  it  ought  to 
deny  the  material  part.  In  the  cafe  of  Lynn  (i),  where 
the  arguments  had  been  very  nice  on  this  head,  it  was  de* 
nied,  that  there  was  any  admiffion.  Here,  they  denied, 
that  Mitchell  w^  duly  elected,  admitted,  and  JTworn,  in 
the  conjunfiive :    on  fuch  an  iffue  he  muft  prove  all  the 


(fl)  Brathwate's  cafe,  i  Vcntr.  19. 

Vol.  IL  Cc 


(i)  AntCyp.  381. 

three 


386  JHf    I  AW 

three  ^Ueg^tio^s ;  yet  the  duenefs  of  his  ele^oxi  was  im- 
(O^terial,  becaufe  tbp  corporation  couVi  not  judge  oftbc 
title. 

On  a  fubfequent  day  his  Lordfliip  delivered  the  opinion 
f^the  court  to  thi^eiFet^f  That  the  grievance  coniplain- 
^d  of,  by  the  pcrfojD  applying  for  the  writ,  yras,  that  having 
llp^n  duly  ^^(Stedy  admitted)  and  fworn,  he  has  been  re? 
moy^d  by  the  corporatipn ;  and  th^y  were  to  (hew  a  iuft 
(:9^V.ije  of  removal.     It  was  admitted^  that  |b.ey  could  npt  .1 

fCnDove  fpr  want  of  original  title*  b^t  it  wa%  cpntcndedj  thja^X  i 

they  h^  fuSiciently  anfwered  the  fuggeftion  of  the  writ, 
4Qd  th^t  iQue  niight  be  taken,  or  an  a^lion  brought  on  the 
return :  on  full  confideration^  th^  court  were  all  of  opinion, 
(hat  (he  return  muft  anfi^er  not  the  words,  but  the  ma^ 
teriality  pf  the  writ,  and  nothing  ihewed  this  more  than 
the  nicety  in  the  c^fes  a^  to  ele^ed  and  duly,  ele^sd.  A  re- 
turn whick  denied,  to  b^  guarded,  and  not  to  deny  tbe  fub- 
fiance,  wa&  bad,  ^tho^^  he  rather  thought  that  nothing 
was  an  ekt^ioa  bm  a  due  eleiSiion.  Here  the  materia} 
fuggeftion  was  th^  removal.  They  were  not  to  jydge  of 
the  title.  The  return  was  in  the  conjun6live,  '^  not  duly 
elected,  adqiitted,  and  fworn,'*  and  therefore  fkUacious.  \i 
the  truth  would  have  warranted  it,  and.  they  had  returned 
not  du>y  ek£ted,  or  admitted,  or  fworn,  it  mi^t  have  beea 
good.— -The  court  were  all  of  opinion,  that  the  reti^rA 
was  infufiicient,  and  therefore  a  peremptory  mandaBma 
muft  ifliie  {a)» 

Whbre  to  a  mandamus  to  reftore,  it  is  returned,  t))at 
the  party  complaining  was  reinoved  by.  the  corporation  at 
largr,  it  is  unneceiTary  to  ftate,  that  the  c<Mrporatioi\  has 
the  power  of  amotion,  becaufe  it  is  incidental  to  them,  ua^ 

fc  *  ■  V 

I 

(«>  B»ex  V.  mayor,  &c.  of  I-yme  Regis^  Dqyg.  79. 

4  .  Icfs  X 


r 

OF     C0fei»6R  At  IONS.   ,  ^87 

Ifeft  it  ht  vafted  by  charter,  bye  laWvOr  pk-efcH|5Jtioni  in  si 
k:k6\:  body  {&).  "  . 

But  where  he  is  ftated  to  hate  been  rdmo^ed  by  i  fele£t 
feody,  the  feturrimuft  fbeWljy  What  title  it  poflefles  that 
authority  (^)i 

IM  ev^ry  cafe  of  dmotioti  the  return  muft  fheW  pf^eifeljp 
th^  canfi  and  the  proceedihgSs  that  the  court  may  judge  of 
theJegality  of  the  one,  and  ihd  fegukrity  of  the  dthet  (^J^ 

The  caufe  muft  Mt  be  tm  gehitaUy  alleged :  as  'that 
the  party  had  obftinafely  refufed  td  obey  the  rtllds  and 
orders  of  the  coriporationj  co&tf^ty  td  the  duty  of  his  of- 
fice, without  faying  what  fliefe  riil^s  dnd  (^dafi  wgrfc  [d). 

So,  a  removal  for  n^gleS  of  dufy  is  bid.  Without  ftaffng 
the  particular  irrflances,  that  the  court  lihay  judge  of  tHeijf 
fttfficiency  (^). 

But  when  it  is  part  of  the  return^,  that  the  party  ap-* 
flying  to  be  reftoted  to  his  freedohi,  had  broken  his  oath 
ifcs  a  fredman,  it  is  not  neceflkry  to  fet  forth  the  whole  of 
the  oath :  it  is  fufficient  to  fet  forth  fo  much  of  h,  as  to 
ftiew,  that  he  has  broken  the  oatb  (/); 

The  caufes  of  amotion,  and  the  regularity  of  the  pfo- 
ceeditigs  in  retnoviiig,  have  been  fully  confidered  irt  fof- 
ftier  parts  6f  this  work  (^). 

The  return  to  a  mandamus  riiay  contain  fevefal  inde- 
pendent matters,  provided  they  be  confiftem  (h). 

Thijs  where  a  mandamus  commanded  the  defendant  td 
admit  and  fwear  Jofeph  Wright  a  freeman  of  Morpeth : 
and  the  return  alleged^    FirftV  That  he  was  not  doly  de^St- 

(is)  Doug.  144  (149)*    Ante,  p,  56.  (^)  Id.  ibid. 

(f)  2  Bur.  731.  (^d)  '2  Ld.  kaym.  1564. 

(^)  fck  V,  mlybr,  &c.  of  l)oncafter}  Sayer  39. 

(/)  Vid.  Style  47^,  479.  {g)  Vol.  i,  4J0.    Vol.  a,  62,  &c. 

{h)  2  Salk.  436,  2  Ld.  Raym,  U44. 

C  c  2  ed; 


jk  I 


388  THE     LAW 

cd ;  and  fccondly,  That  by  the  cuftom  of  the  borough,  no 
peifon  could  be  admitted,  as  a  freeman,  unleis  he  had  been 
jirft  approved  by  the  lord  of  the  manor;  and  that  the 
plaintifF had  not  been  fo  approved:  It  was  obje(^ed,  that 
this  return  was  double,  and  therefore,  according  to  a  rule 
ofpleading,  was  improper:  but  the  court  held,  that  was 
no  objection,  and  that  the  defendant  might  return  any 
number  of  confiftent  caufes  (a). 

To  a  mandamus  to  reftore  a  perfon  to  the  office  of  fex- 
ton,  it  was  returned,  Firft,  That  he  was  not  duly  ele£led: 
and  fecondly.  That  there  v^s  a  cuftom  in  the'inhabitants  to 
remove  at  pleafure,  and  that  they  had  fo  removed  him  pur- 
fuant  to  the  cuftom :  it  was  objefled,  that  the  caufes  were 
inconiiftent :  that  be  was  not  duly  eleAed,  and  that  he 
was  regularly  removed :  but  the  court  held  the  caufes  to 
be  confiftent  J  becaufe,  as  he  was  in  pofleffion  in  point  of 
fad,  they  might  juftify  the  removal,  either  on  the  ground 
that  he  was  not  duly  elected,  or  if  he  was  fo,  that  they  had 
a  right  to  remove  him  at  their  pleafure  (*)• 

But  ftill  the  caufes,  muft  be  confiftent ;  and  iftheybe 
not,  the  whole  return  is  bad  (r),  becaufe  the  court  cannot 
judge  which  of  them  is  true,  and  which  of  them  is  falfe. 

To  a  mandamus  direded  to  the  mayor  and  kldermen  of 
Norwich,  commanding  them  to  admit  one  Dunch  to  the 
place  of  an  alderman  :  they  returned,  that  by  a  charter  of 
Edward  the  fourth,  the  aldermen  were  to  be  chofen  and 
prefented  in  the  fame  manner  as  in  London ;  that  in  Lon- 
don, if  a  perfon  was  ele6ted  alderman  of  a  ward,  the  court 
of  aldermen  might  refufe  him :    that  Dunch  was  ele^ed  by 

(a)  Wi-ight  V.  Fawcett,  4  Bur.  2041 . 

{b)  Rex  V.  churchwardens  of  Taunton  St.  James,  Cowp.  413. 
(f)  Vid.  Rex  v.  mayor  of  Cambridge,  z  Term  Rep.  456,     Rex  v. 
mayor  of  York,  5  Term  Rep.  66. 

the 


OP    CORPORATIONS.  389 

the  ward,  but  refufed  by  the  mayor  and  aldermen,  becaufe 
he  had  not  received  the  (acrament  within  a  year  next  be* 
fore  his  eleAion ;  that  he  was  turbulent  and  factious,  and 
procured  his  eledlion  by  bribery :  and  that  he  was  ifot 
elefted.  The  court  held  the  return  repugnant ;  becaufe  at 
firft  it  admitted  an  election  and  avoided  it,  and  at  laft  aifert- 
ed  that  there  was  no  election  at  all;  and  therefore  a  peremp« 
tory  mandamus  was  awarded  (a). 

But  if  the  return  confift  of  feveral  independent  matters 
confident  with  one  another,  and  fome  of  them  be  good  in 
law  and  fome  of  them  bad,  the  court  may  quafh  the  return 
as  to  the  latter,  and  put  the  profecutor  to  traverfe  or  plead 
as  to  the  former  (b). 

Thus,  where  a  mandamus  was  direfled  to  the  mayor 
and  commonalty  of  Cambridge,  commanding  them  to  ad* 
mit  Patrick  Beales  into  the  office  of  common  councilman  ; 
and  they  returned,  that  from  time  immemorial,  fuch  perfon 
had  been  accuftomed  to  be  admitted  to  the  freedom  of  the 
borough  as  paid  fuch  fum  of  money  as  the  mayor,  bailiffs, 
and  burgeiles,  or  the  major  part  of  them,  had  agreed  and 
fixed  on  in  common  hall,  and  on  payment  of  fuch  fum,  and 
being  fworn  into  the  office  of  burgefs,  had  been  intitled  to 
all  the  privileges,  rights  and  profits  belonging  to  that  office, 
that  by  immemorial  cuftom  within  the  borough,  no  perfon 
was  eligible  to  the  office  of  common  councilman  who  had 
not  either  actually  ferved  the  offices  of  treafurer  and  bailiff", 
or  paid  fuch  fum  to  be  excufed  from  ferving  fuch  offices, 
as  had  been  fixed  by  the  mayor,  bailiffs,  and  burgeffes,  or 
the  major  part  of  them,  in  common  hall,  on  the  application 
of  the  burgefs  defiring  to  be  excufed  from  ferving  fuch 
offices:    that  on  the  nth  day  of  January,  1785,  it  was 

(a)  Reg.  V.  mayor,  &c.  of  Norwich,  2  Salk.  436.  a  Ld.  Raym.  1144, 

Cc'3  agreed, 


390  THE    LA  Mr 

agreed,  that  Beales  might  be  admitted  to  the  freedom  of 
the  borough  on  payment  of  the  fum  of  thirty  guineas,  and 
that  on  the  fame  day  the  mayor,  bailiffs,  and  burgefles^  be-^ 
lieving  that  he  had  paid  that  fum  to  the  treafurerj  diredted^ 
that  he  fbould  be  fwom  into  the  of^ce  of  burgefs :  th^t 
afterwards,  on  the  12th  of  April,  1785)  it  was  agreed,  thait 
Beale$  fhould  be  excyfed  from  ferving  the  offices  of  trea* 
furer  and  bailiff  on  the  payment  of  ten  guineas ;   but  that> 
in  fadt,  he  ha.d  never  paid  either  the  fum  of  thiicty  guineas 
or  ten  guineas :  that  on  the  i6th  of  Auguil,,  i7^7i  being  a 
^rand  common  day,  hold  en  in  and  for  the  faid  borough,  ^ 
^ert;ain  by^  law^  or  o.rder,  wa3  propounded  in  t;he  following 
words,  .^'  ordered  by  the  mayor,  bailiffs,  and  burgeffes  in 
common  hall  ^flembled,  that  no  perfon  (hall  be  eligible  to 
the  office  of  common  councilman,  bujt  fuch  as  have  ferved 
the  offi^ces  of  treafurer  and  bailiff  j  and  that;  no  perfon  hav- 
ing beeix  difpenfed  from  ferving  fuch  offices  of  treafurer 
and  bailiff  ihall  be  eligible  into  the  office  of  common 
councilman,  until  he   has   actually  ferved    fuch  offices^ 
'  a;iy  ufage,  bye  law,  or  ordinance  to  the  contrary  notwith- 
ftanding :"  that  this  bye  law  on  the  24th  of  the  fame 
month,  being  a  grand  common  day,  was  confirmed  by  the 
mayor,  bailiffs,  and  burgefles,  then  and  there  affembled  in 
common  hall :    that  by  reafon  of  the  premifes,  the  faid 
Patrick  Beale  was  and  continued  to  be  ineliglblQ  to  the 
place  and  office  of  oae  of  the  common,  councilmen  of  the 
faid  borough :    and  further,  that  the  faid  Patrick  Beales 
was  not  duly  ek^ed  into  the  faid  place  and  office  of  one  of 
the  common  qouncilmen  of  the  faid  borough,  as  by  the 
ivrit  was  fuppofed— and  for  thcfe  reafons  thqy  coqld  nojt  * 
admit  him. 

To  this  return  it  was  objefted :    Firft,  That  none  of  the 
material  fa6ts  w^re  pofitively  alleged,  but  that  the  whole 

nuifl 


OP    CORPORATIONS.  J91 

muft  be  uitdcrftbodQnly  by  way  of  intchdmeht,  and  tKcre- 
fore  the  court  could  take  no  notice  of  them  In  the  man«. 
lier  in  which  they  were  ftated  j  but,  fecondly,  Suppofing 
the  court  could  take  notice  of  them,  theii  the  returri  was 
bad,  becaufe  it  ftated,  by  way  of  inference^  two  inconfiflent 
fa6ls:  for,  firft,  it  profclfed  to  fhew  that  Bealcs  was 
not  a  burgefs ;  and  then  that  he  was  a  burgefs,  but  that  h« 
was  not  qualified  to  be  eleflcd  a  common  councilman,  be* 
caufe  he  had  not  ferved  certain  offices,  which  nO  perfoa 
but  a  burgefs  could  ferre.  Thefc,  it  waJ  contended,  were 
the  only  two  caufes,  which  were  intended  to  be  exprefily 
returned  as  fuch  j  for,  as  to  the  allegation  at  the  conclit- 
fion  of  the  return,  that  Bealed  was  not  duly  eJe^edy  that 
was  not  interided  as  a  diftin<ft  allegation,  but  as  a  conclir- 
fion  and  inference  from  all  the  fafts  ftated^  which  it  was 
the  province  of  the  court  to  draw.  That  he  was  »*/  dafy 
ele£fedy  was  meant  as  a  Concliifion  from  his  n(ft  being  iligibk. 

To  this  it  was  anfwei^ed,  that  the  latter  part  of  the  re* 
turn^  "  that  Beales  was  not  duly  ekfted/*  was,  indepeit- 
dent  of  the  reft,  a  good  return'  to  the  mandanHds :  that 
there  were  no  words  of  Reference,  fuch  as  "  therefore'*,  or 
«  for  the  reafons  aforefaid,"  which  wottM,  it  was  confcfled^ 
have  connefled  this  with  what  went  before,  and  reduced  il 
to  a  mere  inference  from  the  fefts  ftated :  but  2^  it  flood 
now,  it  was  a  diftin<9:  return  of  itfelf. 

The  court  obferved,  that  as  they  might  undoubtedly 
quafli  the  whole  return,  fo  they  might  quafh  a  part  of  if 
if  they  thought  proper,  and  I'etain  tbte  reft:  that  where 
two  inconfifient  caufes  were  returned,  the  court  rnuft,  iri- 
deed,  quafli  the  whole,  becaufe  they  couH  not  tell  which 
to  believe :  but  it  did  not  appear  that  the  caufes  here  were 
inconfiftent.  The  firft  ftated,  that  he  was  not  a  burgefe ; 
the  fe,cond,  that  granting  him  to  be  a  burgefs,  he  was  mt, 

C  c  4  -     eligible 


I 


392  THE     LAW 

eligible  to  the  office  of  common  councilman :  the  third, 
that  if  eligible,  he  was  not  duly  eleded. — They  therefore 
quafhed  the  return  as  to  the  two  firft,  and  allowed  it  as  tp 
die  laft,  "  that  he  was  not  duly  eledJcd"  (a). 

Returns  to  writs  of  mandamus  muft  be  ascertain 
flnce  the  ft.  of  Anne  as  before ;  for  that  a<Sl  does  not  ex- 
cufe  the  neceffity  of  precifion  in  the  return ;  though  it  en* 
ables  the  profecutor  to  traverfe  the  materia  &d$  alleged 
in  it  (i). 

If  a  clerk  of  the  peace  be  removed  by  the  juftices,  and 
apply  for  a  mandamus  commanding  them  to  reftore  hini, 
and  they  return  a  judgment  given  by  them  for  his  removal, 
on  a  complaint  made  of  offences  comn^itted  by  him :  the 
court  will  not  grant  a  peremptory  mandamus,  though  th^ 
offences  be  not  alleged  with  certainty,  becaufe  the  order 
of  the  juftices  is.a  judgment  till  iet  aiide  :  the  proper  way 
is,  to  have  the  order  removed  by  certiorari,  and  on  the  re- 
turn to  that  writ  to  take  exception  to  it,  and  if  it  b^ 
quafhed,  then  to  apply  for  a  mandamus  (r). 

After  a  peremptory  mandamus  to  fwear  in  ^n  officer, 
no  fubfequent  examination  fhall  be  admitted  by  fummary 
application  to  inquire  whether  he  was  lawfully  ele<£led, 
though  that  application  come  from  the  attorney-general.— 
Therefore,  where  a  mandamus  was  direded  to  the  jurats 
of  Rye,  commanding  them  to  fwear  in  Turner  mayor  of 
the  town,  and  the  minority,  with  defign,  made  an  infuffi- 
cient  return,  on  which  a  peremptory  mandamus  ilTued,  and 
Turner  was  fworn  in :  the  court  refufed  an  application 
afterwards  ipadp  by  the  attorney-general  for  a  mandamus 
(o  fwear  in  one  Crouch,  who  had  been  elected  mayor,  ob- 

(a)  Rex  V.  mayor,  &c.  of  Cambridge,  a  Term  Rep.  456. 

(b)  Vid.  »  Bur.  729,   733,  735,  741,  744.    Doug,   181,  (173), 
iBx,  (t70«  (0  Baine's  cafe,  x  Ld.  Rayra.  1268* 

fcrving. 


OF    CORPORATIONS.  ^93 

fervrng,  that  it  was  not  now  their  bufinefs  to  decide  between 
-the  claimants,  till  the  matter  fliould  be  regularly  tried.— 
In  this  cafe  the  parties  confented  to  try  the  queftiou  in  a 
feigned  iflue  (a). 

The  ftatute  of  Queen  Anne  gives  cofls  to  the  party 
profecuting  a  mandamus,  only  in  the  cafe  where  a  return 
is  made,  and  proceedings  had,  and  j  udgment  given  in  his 
favour.  — But  it  make$  no  provifion  for  cofts  in  cafe  the 

t 

writ  Is  obeyed,  though  the  party  profecuting  it  may.have 
been  put  to  confiderable  expence.  To  remedy  this  griev- 
ance in'  the  cafe  of  perfons  intitled  to  be  admitted  to  the 
fveedom  of  corporations,  it  is  enai^led  by  the  ft.  12  G.  3, 
c.  21,  "that  where  any  perfdn  iTiall  be  intitled  to  be  ad- 
mitted a  citizen,  burgefs,  or  freeman  of  any  city,  town 
corporate,  borough,  cinque  port  or  place,  and  Ihall  apply 

to  the  mayor,  or  other  perfon,  oiHcer  or  officers  in'fuch 

I 
city,  &c.  who  hath  or  have  authority  to  admit  citizens, 

burgefles,  and  freemen,  defiring  to  be  admitted  a  citizer, 
burgefs,  or  freeman ;  and  (hall  give  notice,  fpecifying  the 
nature  of  his  claim,  to  fuch  mayor  or  other  officer  or  offi- 
cers, that  if  he  or  they  fliall  not  fo  admit  fuch  perfon  a 
citizen,  burgefs,  or  freeman,  within  one  month  from  the 
time  of  fuch  notice,  an  application  will  be  made  to  the 
court  of  King^s  Bench  for  a  writ  of  mandamus  to  com- 
pel fuch  admiffion;  and  if  fuch  mayor  or  other  officer  or 
officers  fhalJ,  after  fuch  notice,  refufc  or  negleft  to  admit 
fuch  perfon,  and  a  writ  of  mandamus  fhall  afterwards  iflue 
to  compel  fuch  mayor  or  other  officer  or  officers  to  make 
fuch  admiflion,  and  in  obedience  to  fuch  writ,  fuch  perfon 
fliall  be  admitted  by  the  faid  mayor,  or  other  pfficer  or  offi- 
cers, a  citizen,  burgefs,  or  freeman  of  fuch  city,  town 
corporate,  borough,  cinque  port  or  place,  then  fuch  per- 

{,a)  Sir  T.  Jones,  215. 
'.  fon- 


394  ^  ^  ^     LAW 

fon  (hall,  unlefs  the  court  (hall  fee  juft  caufe  to  the  con- 
trary} obtain  and  receive  from  the  laid  mayor,  or  other 
officer  or  officers  fo  negleding  or  refiifing,  all  the  cofts  to 
which  he  (hall  have  been  put  in  applying  for,  obtaining, 
and  ferving  fuch  writ  of  mandamus,  and  enforcing  the 
lame,  by  a  rule  to  be  made  by  the  court  out  of  which  fuch 
writ  fhall  ifltie,  for  the  payment  thereof,  together  with 
the  colls  of  applying  for,  obtaining,  ferving,  and  enforcing 
the  faid  rule;  and  if  the  rule  fo  to  be  made  fhall  not  be 
obeyed,  then  the  lame  Iball  be  enforced  in  fuch  manner  as 
other  rules  made  by  the  faid  court  (a). 

(a)  Note :  By  the  fame  ftatute  it  is  enabled,  that,  in  order  that  it 
may  be  known  what  perfons  are  from  time  to  time  admitted  freemen  or 
burgefTes  of  any  city,  &c.  the  mayor,  bailiff,  town  clerk,  or  other 
officer  of  any  city.  Sec,  having  the  cuftody  of,  or  power  over  the  re- 
cords of  the  fame,  (hall,  upon  demand  of  any  two  freemen  or  bar. 
gtffes,  permit  fuch  freemen  or  burgeffes,  and  their  agent  or  agents,  at 
any  time  between  the  hours  of  nine  in  the  morning  and  three  in  the 
afternoon,  to  tnrpc6l  the  entries  of  admiilion  of  freemen,  burgefles,  or 
other  inferior  corporators,  and  to  take  copy  or  extracts  therefrom,  pay- 
ing for  every  fuch  infpeflion  2S.  6d.  and  for  every  fuch  copy  or  extract, 
not  exceeding  feventy-two  words,  the  fum  of  4d.  and  fo  in  proportion 
for  all  fuch  copies  or  extra6(s :  and  if  any  mayor,  bailiff,  town  clerk, 
or  other  officer  fhall  refufe  or  deny  the  infpeAion  of  any  fuch  entries, 
or  to  give  copies  or  extracts  as  before  directed }  he  or  they  ihal],  for 
tvtry  fuch  denial  or  refufal,  forfeit  the  fum  of  zool.  to  any  perfon  who 
ihall  fue  for  the  fame  j  to  be  recovered,  with  full  cofts  of  fuit,  by  action 
of  debt  in  any  of  his  Majefty^s  courts  of  record  at  Weftminfter,  in 
which  a£lIon,  it  ihall  be  fufficient  for  the  plaintiff  to  allege  in  his  decla- 
ration, that  the  defendant  or  the  defendants  is  or  are  indebted  to  the 
faid  plaintiff  in  the  fum  of  lool.  for  money  had  and  received  to  his  ufe; 
provided  that  fuch  aftion  fhall  be  commenced  within  the  fpace  of  one 
year  after  the  caufc  of  ic  fhall  have  arifen,  and  not  aftctwards. 


i 
I 


Section 


OF    CORPORATIONS.  395 

Section  III. 

OJ  tnformattons  in  the  nature  of  ^0  fFarrants* 

By  the  fuaion  of  the  feudal  law,  the  King,  as  the  head 
and  vifible  reprefentative  of  the  community,  was  con- 
fidered  not  only  as  the  ultimate  proprietor  of  all  the  land 
in  the  kingdom,  but  the  fountain  from  whence  all  public 
franchifes  were  derived  }  and  li  any  individual  or  colledlive 
body  of  men,  whether  corporate  or  not,  without  legal  au- 
thority, exercifed  any  fuch  franchife,  it  was  confidered  as 
an  ufurpation  on  the  King's  prerogative ;  if  a  franchife 
had  been  legally  granted,  but  was  exercifed  in  a  manner 
inconfiftent  with  the  exprefs  or  implied  condition  of  the 
grant,  the  latter  was  confidered  as  forfeited,  and  the  King 
might  refume  it. 

The  manner  by  which  either  the  original  title  to  fran- 
chifes was  tried,  or  the  forfeiture  of  them  for  fubfequent 
mi&pplication  was  enforced,  was  by  writ  of  quo  war- 
ranto, which  was  called  the  King's  writ  of  right  for 
franchifes  and  liberties  :  and  in  analogy  to  other  writs  of 
right,  the  judgment  was  final  for  the  point  adjudged,  whe- 
ther againft  the  King  or  againft  the  defendant  (^j. 

This  was  an  original  writ  ifluing  out  of  Chancery,  di- 
rc6led  to  the  IherifF  of  the  county,  commanding  him  to 
fummon  the  defendant  to  be  at  ilich  a  place  before  the  King 
at  his  next  coming  into  the  county,  or  before  the  juftices 
itinerant  at  the  next  afBze,  **  when  they  fhould  come  into 
thofe  parts,"  to  fiiew  by  what  warrant,  "  quo  warranto,*' 
h»  claimed  the  franchifes  mentioned  in  the  writ(^), 

{a)  2  Inft.  ^t^.    1  Bulftr.  55,  56. 

(^)  St.  quo  warranto^  6  Ed.  i,  f.  5.  By  being  before  the  Kingy 
was  meant,  being  before  the  King's  Bench.  - 

By 


\ 

i 


396  THE      LAW 

By  the  authority  of  this  writ  the  fherifFwas  to  fummon 
the  defendant  forty  days  before  the  time  appointed  for  the 
coming  of  the  King's  Bench,  or  of  the  Juftices  in  Eyre, 
into  the  county,  to  appear  before  them  refpeSively  at  the 
day,  to  {hew  by  what  authority  he  claimed  to  cxercifc  the 
franchifes  mentioned  in  the  fummons.  If  he  did  not  ap- 
pear at  the  day,  judgment  was  given,  that  the  franchifes 
fhouid  be  feifed  into  the  King's  hands,  in  the  name  of  a 
diilrefs,  which  the  defendant  might  at  any  time  during  the 
fitting  of  the  King's  Bench,  or  of  the  Eyre,  come  in  and 
replevy,  and  then  plead,  as  if  he  had  ^ppe^red  at  the  firfl 
day.  The  confequence  of  his  not  coming  to  replevy  them 
during  the  fitting,  will  be  confidered  hereafter  («), 

The  ftatute  of  Gloucefter  (^)  fo  far  altered  this  pro- 
ccfs,  that  if  the  defendant  did  not  appear  on  the  firft  day,  a ' 
venire  facias  iffued  to  the  {herifF,  commanding  him  to 
fummon  the  defendant  to  appear  on  the  fourth  day,  on 
which,  if  he  did  not  appear,  judgment  of  feifure  was  given, 
as  before  this  ftatute  on  his  non-appearance  on  the  firft 
day  [c). 

If  the  defendant  appeared  en  the  return  of  the  fummons 
or  of  the  venire^  a  day  was  given  him  to  plead,  or  he  might 
plead  on  his  appearance,  and  if  his  plea  was  infufficient, 
ftill  a  day  was  given  him ;  on  which,  if  he  made  defai|It» 
judgment  of  feifure  was  given  as  in  the  cafe  of  his  non-ap- 
pearance on  the  firft  day :  but  there  was  this  difference  be- 
tween the  efFccS  of  the  judgment  in  thefe  two  cafes,  that 
when  it  was  given  for  non-appearance,  he  might,  within 
the  fitting  of  the  King's  Bench,  or  of  the  Eyre,  replevy 
the  franchifes  as  a  matter  of  courfe,  without  paying  any 

(^a)  Vid.  2  Inft.  282.     Kcilw.  139,  pi.  5, 

ib)  Qiio  war.  6  Ed.^i,  f.  5. 

(c)  Vid.' Jenk.  141.    2  Rol.  Rep.  4^,  92. 

fine} 


X 


J 


OF    CORPORATIONS. 


397 


fine;  but  when  it  was  given  for  his  default  on  the  day 
given  him  to  plead,  the  court  might  impofe  a  fine  upon 
him,  before  he  was  permitted  to  replevy  (^7). 

This  was  the  ordinary  courfe  of  proceeding  at  com- 
mon law  before  the  juftices  in.  Eyre,  and  the  court  of 
King's  Bench,"  when  it  accompanied  the  King  in  his  pro- 
grefs  through  the  different  counties ;  but  a  more  fummary 
mode  was  adopted  by  Edward  the  firft,  in  the  beginning 
of  his  reign.  As  he  wanted  money,  it  was  fuggefted  by 
fomeof  his'counfellors,  that  few  of  the  nobility,  clerg3^, 
or  commonalty  who  had  franchifes  by  the  grant  of  his 
progenitors,  could  produce  the  charters  in  fupport  of  the 
claim,  as  moft  of  thefe  had,  by  length  of  time,  or  from  the 
tumult  and  confufion  of  the  civil  wars  in  the  time  of 
Henry  the  third,  or  by  accident,  been  either  loft  or  de- 
ftroyed :  in  confequence  of  this  council,  the  King  iffued  a 
proclamation,  commanding  every  man  who  had  liberties 
or  franchifes.  to  appear  before  certain  perfons  commiifioned 
for  that  purpofe,  to  fhew  by  what  title  he  claimed  them ; 
on  which  many  franchifes  which  had  long  been  quietly 
enjoyed,  were  taken  into  the  King's  hands  *'  eo  quoA 
fnulld  tabula  €onflarent.**^-'T\x\%  produced  much  difcontent 
Aroughout  the  kingdom ;  and  therefore  the  King,  who 
well  underftood  how  to  prevent  the  ill  confequence^  of  an 
ob;ioxious  meafure,  gave  his  approbation  to  the  ftatute  of 
Gloucefter(i). 

By  that  ftatute  it  was  enafted,  that  a  writ,  in  genera* 
terms,  ihould  iffuc  to  the  (herifF  of  every  county,  com- 
manding him  to  permit  all  perfons  within  his  county  to 
continue  in  the  enjoyment  of  fuch  liberties  as  they  had 

{a)  Vid.  Maynard'8  Ed.  2,  530.  KeiL  137  b.  pi.  x.  9  Co.  28  b. 
29  a.  {b)  6  £(^  i^  vid,  %  Ind.  280. 

'  hitherto 


398  THE    LAW 

hitherto  reafonably  ufed  till  the  coining  of  the  King  into- 
that  county,  or  till  the  coming  of  the  juftices  in*  £yre,  or 
till  the  King  ihould  give  fome  further  direction  on  thefiib-* 

But  at  the  fame  time  the  form  of  another  writ  was  pre- 
icribed,  by  which  the  iherifF  was  commanded  to  make 
public  proclamation  throughout  his  coQnty,  as  well  in  cities 
as  in  boroughs,  and  other  trading  towns,  and  elfewhere^ 
that  aS  thofe  who  claimed  to  have  any  liberties  by  charter, 
-  or  otherwire,  fliould  appear  before  the  juftices  at  the  firft 
affize,  when  they  fhould  come  into  thofe  parts,  to  {hew  by. 
what  authority  they  claimed  to  have  them  (h)* 

This  proclamation  was  to  be  made  forty  days  before 
the  coming  of  the  juftices,  in  analogy  to  the  fummons  on 
the  common  writ;  but  every  individual,  who  claimed  any 
franchife,  was,  without  any  fpeciiic  complaint  made  againfl" 
him,- at  his  own  peril,  without  a  particular  fummons,  to 
come  and  fhew  what  franchtfes  he  claimed,  and  by  what 
warrant.  If  he  did  not  come  in  at  the  day,  his  francbifes 
were  to  be  taken  into  the  King's  hands  in  the  name  of » 
diftrefs,  by  the  fherifFof  the  county,  fo  that  he  fhould  riot 
ufe  them  till.he  came  to  anfwer  before  the  juftices :  whcn^ 
he  came  he  might  replevy  them ;  but  he  was  then  to  an- 
fwer immediately  according  to  the  form  of  the  general 
writ.  If.  he  obje£led,  that  he  was  not  bound  to  anfwer 
without  an  original  writ  profecuted  individually  againfl?' 
himfelf,  inquiry  was  to  be  made,,  whether  he  had  ufurped 
or  occupied  any  liberties  on  the  King  or  bis  pradecefibrsy. 
**  of  his  own  head  or  prefumption,"  or  whether  hi6  ancef- 
tors  had  died  feifed  of  them  ?  if,  "  by  any  mean,'*  the  for- 
mer appeared  to  be  the  cafe,  he  was  to  anfwer  immediately 

{a)  Quo.  war.  6  £d.  i^  f.  2«  (^)  Id.  f.  4.    , 

without 


OF     CORPORATIONS.  39^ 

%vitbout  writ ;  if  the  latter,  then  he  was  to  be  indulged  with 
an  original  writ  out  of  chancery,  the  form  of  which  1$^ 
given  in  the  ftatute,  and  feems  to  be  the  fame  as  that  at 
common  law  [a]*  The  procefs  given  to  compel  an  an-^ 
fwer  has  been  already  defcribcd{^). 

The  defendant  to  a  particular  writ  migbt  either  difclaim 
or  plead  \  if  he  pleaded,  it  was  incumbent  on  him  to  fhew 
a  complete  title  againft  the  King  (r),  in  which  refped 
there  \s  a  remarkable  difference  between  this  proceeding, 
and  a  civil  adtion  :  in  the  latter,  the  ^^-/w/i^muft  recover 
by  the  ftrength  of  his  own  cafe,  and  muft  not  reft  on  the 
weaknefs  of  the  defendants  plea;  for  however  defedive  the 
latter  may  be,  yet  if  the  plaintiff"  do  not  Ihe w  a~  caufe  of 
adion,  he  cannot  recover :  but  as  all  franchifes  are  de- 
rived from  the  crown,  the  writ  of  quo  warranto  fhews 
no  title  in  the  King  to  have  the  particular  franchife  ex- 
ercifed  by  the  defendant,  but  calls  upon  the  latter  to  fhew 
by  what  title  he  claims  it,  and  if  the  title  he  fets  forth 
be  incomplete,  the  King  is  intitled  to  judgment  (^). 

To  the  plea  there  might  either  be  a  demurrer  or  re- 
joinder on  behalf  of  the  King,  and  fubfequent  pleadings  as 
in  other  cafes  {e\. 

It  frequently  happened,  that  though  the  defendant  fhew- 
ed  a  good  title^  by  a  charter  from  the  King,  the  jjuftices 
delayed  to  give  judgment  in  his  favour  under  pretence  of 
their  not  being  certified  of  the  King's  pleafure :  in  this 
cafe  the  defendant  was  under  the  neceffity  of  fuing  out  of 
chancery  a  writ  de  libertatibus  allocandisy  which,  after  re* 
citing  the  defendant's  title^  commanded  the  juftices  to  al-^ 

WwitLf). 

(«)  Id,  r.  5.  (A)  Ante,  p.  39^»  (c)  9  Co.  28  a. 

(d)  Vid.  4  Bur.  4146,  7.  {e)  Vid.  the  ft.  quo  war.  f.  5. 

(/)  R^g*  '^*»  F.  N.  B.  ai9,  a  Inft.  495. 


40C>  THE     LAW 

But  as  this  wiit  lay  only  where  the  defendiint  ihewecf 
a  charter,  he  was  without  remedy  where  he  claimed  by 
prefcriplion.  This  being  the  fubjefl  of  much  complaint, 
contributed  to  produce  the  ftatute  de  quo  warranto  novum 
in  the  eighteenth  year  of  Edward  the  firft,  by  which  it  was 
enadled,  that  **  all  under  the  King's  allegiance,  ^o  could 
verify,  by  good  inqueft  of  the  country,  or  otherwife,  that 
they  and  their  anceflors,  or .  predeceflbrs,  had  ufed  any 
manner  of  liberties  of  which  they  were  impleaded  by  writs 
of  quo  WARRANTO,  before  the  time  of  King  Richard,  or 
in  cU  his  time,  and  had  continued  hitherto,  fo  that  they  had 
notmirufed  fuch  liberties,  (hould  be  adjourned  further  to 
a  certain  day  reafonable  before  the  fame  juftices,  within 
which  they  might  ^o  to  the  King  with  the  record  of  the 
juftices  figned  with  their  feal,  and  the  King  (hould,  by  his 
letters  patent,  confirm  their  eftatc  (tf). 

It  feems,  that  before  this  ftatutc,  writs  of  quo  warranto 
had  been  frequently  made  returnable  in  the  courts  at 
Weftminfter,  and  that  where  they  were  made  returnable 
in  the  eyre,  the  juftices  frequently  adjourned  the  queftion 
to  thofe  courts  {h)* .  Both  thefe  praiSlices  were  produdlive 
of  great  oppreffion  and  expence  to  the  defendants,  and 
were,  therefore,  frequently  the  fubJe<Sl  of  complaint.  The 
King,  therefore,  by  this  ftatute,  granted,  **  that,  for  fpar- 
ing  the  coft^  and  expences  of  the  people  of  his  realm, 
pleas  of  quo  warranto  from  thenceforth  fhould  be  pleaded 
and  determined  in  the  circuit  of  the  juftices,  and  that  all 
pleas  then  depending  fhould  be  adjourned  into  their  own 
ihires,  until  the  coming  of  the  juftices  into  thofe  parts"(c}. 

When 

(fl)  iSEd.  ift. I.        (A)  Vitf.Maynard'sEd.'2, 530.    «Inft.  4.97. 

(r)  S.  2.    Lord  Coke,  in  his  %  Inft.  497,  fays,  '*  of  this  branch  we 

fiiul  a  notable  cafe  in  our  books.     The  ai'chbiihop  of  York  was  in 

pofTefiioa 


OF     CORPORATIONS.  .^I 

When  the  juftices  in  Eyre  ccafed,  "  then/*  fays  Lord 
Coke,  "  this  branch  of  this  ftatute  for  the  eafe  of  the  fub* 
jeft,  and  for  (aving  their  cofts,  charges,  and.expences,  loft 
its  efFeftj  for  with  juftices  in  Eyre  this  branch  lived, 
and  with  them  it  died"  (a).    So,  that  what  writs  of  quo 

pofleilion  of  prifage  of  wines  in  the  port  of  Hull,  and  in  the  reign  of 
Edward  i,  in  the  time  of  Jobtt  archbifliop,  the  fame  franchife  was 
feized  into  the  King*s  hands)  after  the  deceafe  of  John,  Williana  hi« 
fucceflbr  fued  in  parliament  in  the  reign  of  Ed.  3,  by  petition  of  rights 
to  be  reftored  to  the  faid  franchife ;  and  afterwards  by  parliament  the 
petitioner  was  reftored  to  the  pofleflioh  of  the  franchife,  and  by  the 
fame  award  it  was  adjudged,  that  the  faid  William,  the  petitioner, 
ihould  anfwer  the  King  ivben  and  tvbere  hepleafed ;   and  th^  like 
award  was  made  on  the  petition  of  the  faid  William  in  the  parliament 
the  morrow  after  the  feaft  of  St.  Katheiine,  in  the  fourth  year  of  the 
faid  King;    whereupon  the  King   brought  a  writ  of  quo  warranto 
againft  the  faid  William,  archbilhop,  returnable  in  the  court  of  comtnon 
pleas y  to  know  by  what  warrant  he  claimed'  to  have  prifage  of  wines 
in  the  port  of  Hull;   Paming,  that  famous  ferjeant,  (who  after  was 
Chief  Juftice,  and  after  that  Lord  Treafurer  of  England,  and  laftly^ 
Lord  Chancellor  of  England)  of  council  with  the  archbifliop,  pleaded 
to  the  jurifdi6lion  of  the  court,  and  demanded  judgment,  if  the  arcb- 
bifhop  ought  to  make'any  anfwer  there,  for  that  King  Edward,  grand- 
father of  Ed.  3,  made  a  ftatute  (intending  this  (Ututeof  18  E.  i) 
which  provided  that  pleas  of  quo  warranto  (hould  be  pleaded  before 
juftices  in  Eyre  in  the  counties,  and  that  it  was  ordained  by  a  ftatute 
made  in  the  time  of  King  Ed.  3,  at  his  parliament  at  Northampton, 
that  by  a  writ  undei*  the  great,  or  privy  feal,  no  difturbance  (hould  b» 
that  common  right  fhould  not  be  done  to  all,  and  we  intend  not,  faith  • 
he,  that  againft  the  faid  ftatute,  which  is  a  law  common  to  all,  that  we 
ought  to  anfwer  in  this  court.     The  matter  concerning  this  a6l  of  i  S 
Ed.  1,  was  not  denied,  but  Sir  William  Herle,  C.  J.  who  gave  the  rule, 
replied,  upon  the  award  of  parliament,  that  the  archbiftiop  ftiould  an- 
fwer the  King,  when  and  where  he  would,  and  thereupon  Parning 
ai^fwered  over."  (a)  %  Inft.  4.98. 

Vol.  II.  D  d  warranto 


403  THE    t  AW 

warranto  were  afterwards  profecuted,  were  neceffiurily 
made  returnable  in  the  courts  of  Weftminfter,  and  mod: 
commonly  in  the  King's  Bench :  the  procefs  was  the 
iame  as  on  writs  returnable  before  the  juftices  of  Eyref 
and  if  the  defendant  did  not  come  in  within  the /rrm  in- 
which  the  venire  was  returnable^  and  replevy  his  franchifes, 
the  confequence  was  the  fame  as  in  the  cafe  of  his  not  re- 
plevying them  during  the  fitting  of  the  Eyre  {a). 

After  plea  pleaded,,  the  defendant,  it  is  faid,  might 
have  amended  his  plea,  paying  cofts,  before  demurrer  joined; 
and  the  reafon  given  is,  that  the  party  is  for  ever  concluded 
by  the  judgment :  but,  after  demurrer  joined,  it  is  faid,  it 
feems,  that  he  could  not  amend  {b). 

Where  a  perfon  came  before  the  juftices  in  Eyre,  in 
confequence  of  the  general  proclamation,  without  an 
original  Writ,  the  entry  on  the  record,  after  the  genera] 
tide  of  "  PtACiTA  DE  <jyo  WARRANTO,"  was  fimply, 
"  fuch  a  one  gives  to  the  Lord  the  King  fomuch  for  li- 
cence to  claim  andhav^  die  liberties  undermentioned:" 
then  fetting  out  the  liberties,  and  the  title  by  which  he 
claimed  them,  it  concluded  with  ^^  and  by  that  warrant  he 
claims,  &c."{r). 

When  the  party  came  in  confequence  of  a  pafrticular 
writ,  the  entry,  after  the  general  tide,  was,  that  fuch  an 
one  was  fummoned  to  anfwer  to  the  Lord  the  King  by 
what  warrant  he  claims  to  have  fuch  and  fuch  franchises  (d). 
If  the  party  appeared  and  pleaded,  then  the  entry  was, 

**  and  the  aforefaid      v*    comes,  and  as  to  lays," &c. 

fetting  forth  his  title  or  difclaiming.  • 

^    {a)  %  Inft.  283.  {b)  1  Sid.  54.  (0  Raft.  540  b. 

Xd)  Raft.  540  b.  Madox  13O9  2S59  6.  Mado^e,  130,  adds,  <' with- 
put  the  leave  of  the  King  or  his  progenitors/*  which  feems  fuperfiubus, 
and  is  not  in  the  writ  of  quo  warranto  in  ft.  4£d«  u 

In 


OF     CORl^ORA  TIONS.  46^ 

In  both  cafes,  of  a  claim  in  confequence  of  the  general 
proclamation,  and  of  an  appearance  to  the  original  writ,  if 
the  Attorney  general  thought  the  title  of  the  defendant  faf- 
iicienty  he  prayed,  that  it  might  be  inquired  by  the  coun* 
try,  in  what  manner  the  defendant  and  his  ailceftors  hjad 
ufed  the  franchiies;  on  which  a  **^iiat  mde  jurata^'  was  en- 
tered; a  jury  ofinqueft  appeared  on  the  day  appointed,* 
and  according  to  their  verdi6l  judgment  was  given  for  the 
defendant  or  for  the  crown  (a). 

The  form  of  the  judgment  will  be  the  f«bje£t  of  futui*^ 
confideration. 

After  the  circuits  of  the  jufHces  itinerant  ceafed,  this" 
writ  of  quo  'warranto  gradually  went  out  of  ufe,  and 
an  INFORMATION  in  the  nature  of  qvq  warranto,  at  the 
fuit  of  the  attorney  general,  was  fubftituted  in  its  place  (h). 

The  form  of  this  information  is  thus  ;  '^  SucTi  an  one,  at« 
torney  general  of  the  Lord  the  King,  who  fues  for  ihc 
Lord  the  King  in  this  behalf,  comes  here  into  the  court  of 
our  faid  Lord  the  King,  before  the  King  himTelf,  at  Weft- 
minfter,  on  '  in  this  fame  term,  and  for  the 

£ud  Lord  the  King  gives  the  court  here  to  underftand  and 
be  informed,  that  '  for  the  fpace  of  -—now 

h&  pafl  and  more,  have  ufed,  and  ftill  do  ufb,  without.any 
warrant  or  royal  grant,  the  following  liberties  and  fran«* 
chifes,  to  wit,  .  ,  of  all  which  liberties,  privileges, 
4Bd  franchifes  aforeCud,  the  faid  ,  during  all  the  time 

afbreiaid,  have  ufurped,  and  ilill  do  ufurp  upon  the  faid 
Lord  the  King*  tb  the  great  damage  and  prejudice  of  his 
royal  prerogative,  whereupon  the  faid  attorney  of  the  faid 
Lord  the  King,  for  the  laid  Lord  the  King,  prays  the  ad- 
vice of  the  court  in  the  premifes,  and  due  procefs  of  law 

(tf)  Vi4.  Raft.  540b.  W  Vid.  3  Bur.  187. 

D  d  2  againft 


.404  THE    t  AW 

againft  the  (aid  in  this  behalf  to  be  made,  to  anfwer 

to  the  faid  Lord  the  King,  by  what  warrant  he  claims  to 
have,  ufe,  and  enjoy  the  liberties^  pririleges,  and  franehifes 
aforefaid#'' 

This  is  the  form,  whether  the  information  be  brought 
for  an  ufurpatton  without  any  original  title,  or  for  a 
fubfequent  forfeiture,  where  the  original  title  is  not  dif- 
'  puted(tf). 

The  procefs  ufually  awarded  on  the  roll  againft  indi- 
viduals, whether  claiming  to  ad  as  a  corporation,  or  claim- 
ing any  other  franchife,  is  a  venire  facias^  fomedmes  with 
aclaufeof  nonomittas,  and  fometimes  without.' 
The  entry  immediately  after  the  concluHon  of  the  informa- 
tion, is  thus:  ^^  whereupon  the  fberifFis  commanded,  that 

•I 

he  caufe  to  come ;"  or,    ^^  that  he  omit  not,  &c.  but  that  i 

be  caufe  to  come,  &c,  to  anfwer,  &c."  | 

If  the  defendants  do  not  appear  at  the  day,  the  next  pro- 
cefs awarded  is  a  diftringas  (^).  Againft  a  corporation,  not 
profecuted  for  a6ling  as  a  corporation,  but  for  ufurping 
other  liberties,  the  firft  procefs  awarded  is  a  diftringasy  and 
the  entry  on  the  rolL^n  this  form :   '*  whereupon  it  is  1 

agreed,  that  the  aforefaid  mayor  and  commonalty,  and. 
citizens  of        ■     ■■  be  diftrained  by  all  their  lands, &c.  i 

fo  that,  &c.  to  anfwer  to  our  Lord  the  King  in  the  pre-  '1 

mifes,  and  the  fheriffis  commanded,  that  he  diftrain  them 
in  form  aforefaid,  fo  that,  &c.  at  fuch  a  day*'  (0- 

Whether,  ifthe  defendants  do  not  appear^  the  proper 
courfe  be  to.feize  the  liberties  into  the  King's  hands,  as  in 

{a)  Vid.  Co.  Ent.  5*7—564,  per  tot.  qvo  wai*.  v.  mayor,  &c.  of 
London. 
{b)  Vid.  quo.  ^rAr,  V.  city  of  London,  1  Co*  Ent.  quo  fw.  per  tot; 
(0  Vid.  Co.  Ent.  536  a. 

5    .  i  *« 


L5 


i.  * 


OF    COR  FOR  Af  IONS.  4^"- 

the  WR^T  of  quo  warranto,  will  be  examined-  on  a  future 
occafion, 

Thouoh  a  venire  facias  and  dijiringas  are  the  procefe 
ufualiy  awatded  on  the  roll,  yet  it  feeins  that  againft //r- 
dividuals  who  cannot  be  perfonsdly  ferv^  with  the  venirfe, 
procefs  of  outlawry  lies  {a)»  '^    " 

Wh£N  the  defendant  appears,  he  may  either  diictaim  as 
to  all,  or  plead  as  to  all  the  franchifes  mentioned  in  the  in- 
formation i  or  he  may  plead  as  to  part,  and  difclaim  as  to 
part.  ■ 

If  he  difclaim  as  to  all,  the  entry  i^  in  this  form :  "  the 
(iid  -I ' '  ■  ■ ,  protefting  that  the  information  aforefaid  is 
not  fufficient  in  law,  and  that  he  is  not  under  any  necefiity 
by  the  law  of  the  land  t6  anfwer  thereto,  for  plea  never- 
thelefs,  faith,  that  he  never  ufed  the  aforefaid  liberties, 
privileges,  and  franchifes,  nor  any  of  them,  nor  in  the  fame, 
or  any  of  them,  ever  ufurped  upon  the  faid  Lord  the  King^ 
in  manner  and  form  as  by  the  faid  information  is  fuppofed, 
but  in  the  fame,  and  in  every  of  them^  difclaims  and  dif- 
avows,  whereupon  he  prays  judgment,  and  that  he  may  be  * 
difmifled  by  the  court'*  {b). 

If  he  plead  as*  to  part,  and  d^M^im  as  to  part,  the  en« 
try  of  the  difclaimer,  afterthe  pfta,  is  in  this  form :  "  and 
as  to  the  refidue  of  the  liberties,  privileges,  and  franchifes 
in  the  iaid  information  above  fpecified,  upon  the  faid  Lord 

the  King  fuppbfed  to  be  ufurped-by  the  faid '• — ,  the 

faid  '  fays,  that  he  never  ufed,  nor  does  he  npw  ufe 

the  refidue,  &c."  (c). 

Where  the  defendant  pleads,  the  entry  is  in  this  form  : 
"  the  faid        .  .  ^  a$  to  the  aforefaid  liberty,  &c .  of  — ^^ :, 

• 

{a)  Vid.  Patrick's  cafe,  Cro.  Jac*  518.     Garrard  v.  Reg.  id.  531, 
both  of  which  fcem  to  have  been  informations. in  the  nature  of  (jiio  war.' 
(*)  Co.  Ent.  5117  b.  (f)  Id.  5190. 

D  d  3  fays 


406  TKf    tAW 

(ays  ■  /*    Here  he  ict$  out  his  tide  to  the  particular 

frtnchife ;  and  fo  of  every  other  claimed  by  a  diftinA  tide, 
and  concludes  his  plea  as  to  eachy  in  this  manner :  ^  and  by 
this  warrant  the  fiud  '  has  ulied  during  aU  the  tune 
aforefaidy  in  the  iaid  information  mentioned^  and  ftill  ufes 
the  liberties,  privileges,*  and  franchifes  of  ■  as  he 

well  might  and  ftill  may :  without  this  that  the  faid  « 
has  ufurped,  or  now  does  ufurp  the  (aid  liberties,  &c*  on 
the  iaid  Lord  the  King,  in  manner  and  form  as  by  the  in^ 
fornyition  aforeiaid,  for  the  iaid  Lord  the  King,  is  above 
fuppoied:  all  which  the  iaid  ■  *  ■  is  ready  to  verify, 
as  the  court,  &c.  whereupon  be  prays  judgment,  and  diat 
all  and  ilngular  the  liberties,  Uc.  above  by  him  as  aforeiaid 
claimed,  may  be  allowed  and  adjudged  to  him,  and  that  be 
may  thereupon  be  diiiniired  from  this  court''  [a). 

The  attorney  general  then  demurs  or  replies,  and  the 
fubfequent  proceedings  are  in  the  fame  manner  as  in  civil 
acUons. 

The  judgment  feems  to  be  the  fame,  and  fubje£l  to 
the  fame  varieties  as  on  the  writ  of  quo  warranto. 

If  it  be  given  in  (avour  of  the  defendant^  the  entry 
is  in  this  form :  ^*  it  is  confidered,  that  the  liberties,  &c.  be 
allowed  to  the  faid  -/*  or  thus :  "  the  fiitd  ■         n»y 

uie,  have,  and  enjoy,  all  the  faid,  &c.  and  that  the  iaid «— -^ 
as  to  the  faid  premifes  may  be  difmiiTed  from  this  court, 
SAVING  always  the  right  of  the  faid  Lord  the  King,  if 
hereafter,  &c.*'{^). 

"  This  falvo  jure  for  the  King,*'  iays  Lord  Coke, 
"  fcrveth  for  any  other  title  than  that  which  was  ad- 
judged i  and  therefore  William  dc  Penrugge,  the  King's 
attorney,  for  profecuting  a  quo  warranto  againil  the 

« 

(a)  Co.  £nt.  quo  war.  per  tot. 

(5)  Id.  535  b.  537  a.  Raf.  54»b.  , 

abbot 


OF    CORPORATIONS. 


407 


■ni 
r:«i<i 
ikk 
iUi 
— «i 

i,ki 

fikft 

uitf 


abbot  .of  Fifcbamp'  for  franchifes  widiin   the  manor  of 
Steyning,  ^»^  praceptOj  was  committed  to  gaol''  (tf).    ^ 

On  dtfdaimer,  by  the.  defendant^  the  attorney  general 
prays,  **  that  whereas  the  faid  ■  ■  .  »  by  his  plea,  has 
di&vowed  and  difclaimed  all  and  lingular  the  liberjdes,  &c. 
aboye  (pecified,  judgment  may  be  given  for  jthe  King,  and 
that  the  (aid  — — ,  with  the  faid  liberties  and  franchifes,  or 
any  of  them,  may  no  way  intermeddle,  but  may  hereafter 
be  altogether  excluded  from  the  fame  i"  and  judgment  is 
accordingly  giveain  that  form  (b). 

With  refpeft  to  the  form  of  the  judgment  for  the  King, 
when  it  is  given  on  the  defendant's  pleading,  there  has  been 
much  difficulty,  and  difpute  (c). 

.  In  the  year  book  of  the  15  £d.  4  (4^)9  this  rule  is  laid 
down^  '^  that  where  it  clearly  appears  to  the  courts  that  a 
liberty  is  ufurped  by  wrong,  and  exercifed  on  no  title, 
either  by  the  King's  grant  or  other  wife,  judgment  only  of 
oufter  fhall  be  entered :  but  that  where  it  appears^  that  the 
King  or  his  anceftors  have  once  granted  a  liberty^  and  the 
liberty  is  forfeited  by  mifufer  or  non-ufer,  the  judgment 
ihaU  be,  that  it  be  ieized  into  the  King's  hstnds  >  and  the 
reafon  given  for  the  diftin£tion  is,  that  where  the  liberty 
or  franchife  has  been  ufurped^  the  King  cannot  have  that 
which  never  legally  exifted  -,  biit  in  cafes  of  an  abufer  or 
non-ufer  of  a  franchife  once  lawfi^Iy  granted,  the  King 
refuihes  that  which  originally  flowed  from  his  bounty  (^), 
and  this  courfe  in  the  latter  cafe,  it  has  been  faid,  is  moft 
beneficial  for  the  fubje£l^  who,  though  by  forfeiture»  mif> 

(a)  ft  Inft.  281.  (b)  Co.  Ent.  27  b. 

(r)  Vid.  the  caie  of  the  quo.  war.  againft  the  city  of  London,  and 
Sir  James  Smith's  cafe,  4  Mod.  52,  Skin«  295,  t  Show.  263,  Carth.  2x7* 
(d)  1 5  Ed.  4  f .  7  b. 
{/)  Sawyer's  Arg.  quo  war.  17.    %  Term  Rq>.  551. . 

P  d  4  pleading, 


ft  ■■'  . 


408  TUB    LAW 

pleading,  or  default,  he  ifiay  lofe  his  liberty,  may  have  re 
courfe  to  the  King's  mercy  for  reftitution  (a). 

From  this  it  would  (eem,  that  the  only  cafes  in  which 
judgment  %AouJler  only  ought  to  be  given,  is  where  there  is 
no  cokur  of  title  in  the  defendant,  or  where  a  franchife  is 
claimed  by  prefcription,  but  it  is  fuch,  that  by  the  law  it 
cannot  be  fo  claimed. 

As  if  a  man  claim  to  hold  a  court  baron  in  virtue  of  a 
manor  held  by  copy  of  another  manor;  there  judgment  of 
oufter  only  {hall  be  given,  becaufe  a  copyholder  being  only- 
tenant  at  will,  cannot  hold  a  court  baron  to  have  forfei- 
tures, and  hold  pleas  in  a  writ  of  right  (3). 

But  where  there  is  a  tokur  of  title,  but  the  pleading  of 
the  defendant  defensive,  there  is  only  judgment  of  feifure, 
and  not  of  oufter,  as  in  the  cafe  of  the  abbot  of  Strata  Mar- 
cella  (c). 

So,  in  the  cafe  of  New  Malton,  though  the  ifliie  that  the 
corporation  was  by  prefcription,  was  tried  agaiiift  them  ; 
yet  as  they  had  long  aded  as  a  corporation,  and  might 
have  mifpleaded  their  title  in  claiming  that  by  prefcription 
which  commenced  by  grant  within  time  of  memory,  judg- 
ment only  of  feizure  was  given,  and  not  of  oufter  (^/)/ 

Where  grants  appear,  4)ut  either  the  parties  are  not 
capable  of  taking,  or  the  liberty  or  privilege  granted,  not 
allowable  by  law,  the  courfe  has  been  to  enter  a  mixt 
judgment  both  of  feizure  and  oufter  {e). 

Thus,  in  the  cafe  of  the  inhabitants  of  Denbigh,  who 
claimed  by  charter  feveral  liberties,  but  it  appearing,  that 
they  were  not  a  corporation,  and  confequently  had  no  ca- 

(^)  Sawyer's  Arg.  loc.  cit. 

(^)  Rex.  V.  Stanton,  Yclv.  190.    Cro.  Jac.  159,  cited  5awy.  -Arg. 
loc.  cit.  (r)  9  Co.  24  a'.  Co.  Ent.  43  a. 

{d)  Sjiwy.  Arg.  Ibc.  cit.  (r)  Id.  ibid. 

pacity 


I 


/ 


OF    CORPORATIONS.  4O9 

pacity  to  take,  yet  the  uTurpation  being  by  colour  of 
letters  patent,  the  judgment  was  mixed  both' of  feizure  and 
oufter  {a}. 

So,  where  a  quo  warranto  was  brought  againft  one 
Cufack,  and  other  aldermen  of  Dublin,  for  claiming, 
among  other  things;  that  they,  excluiive  of  others,  fhouid 
buy  and  fell  all  merchandizes,  that  nobody  fhouid  buy  of 
another,  or  fell  to  another,  and  that  all  merchandizes  ihould 
be  brought  to  their  common  hall ;  and  they  pleaded  a 
charter  of  Queen  Elizabeth :  the  court  of  King's  Bench  in 
England,  on  a  writ  of  error  from  Ireland,  were  of  opinion, 
that  the  liberties  granted  did  not  pafs  nor  could  be  lawfully 
ufed:  but  the  ufurpation  being  by  colour  of  a  grant,  judg«f 
ment  of  feizure,  as  well  as  oufter,  was  given  (^). 

In  addition  to  the  judgment  of  feizure  or  of  oufter,  or 
of  feizure  and  oufter,  except  only  in  the  cafe  of  oufter  on 
difclaimer,  there  is  alfo  judgment,  that  the  defendants  be 
taken  to  make  fine  to  the  King  for  the  ufurpation  (c)^ 
And  in  this  refpeft,  it  feems  the  judgment  in  the  informa- 
tion differs  from  that  in  the  writ  of  quo  warranto  j  for 
in  the  latter,  it  is  apprehended,  there  could  be  no  judgment 
of  capias  profin^ :  the  defendant  was  in  the  nature  of  a 
plaintiff;  he  made  {lis  claim;  if  he  failed  in  niaking  ic 
good,  the  judgment  was  not  capias profine^  but  quod  fit  in 
mifericordja  (d). 

After  judgment,  the  regular  courfe  is  to  iffue  a  writ 
of  feizure  lo.thc  fheriff,  Nvhich,  after  reciting  the  proceed- 
ings in  the  quo  warranto^  pommands  him  to  feize  the  liber ^^ 

(a)  Co.  Ent.  537—5393. 

(/»)  Palmer  i,  2  Roll.  Rep.  113,  cited  Treby's  Arg.  quo  war.  15. 
Sawyer's  Arg.  loc.  cit.  (c)  Co.  Ent.  quo  war\  per  tot.     . 

(it)  Vid.  Raft.  Ent.  540  a.  pi.  i ,  aj^d  Ld.  C.B.  Eyre's  Arg.  in  dom. 
proc.  in  Rex  v.  Amcry,  564. 

tie^ 


< 


412  T  H  E      L  A  W 

SIC  the  trial  of  fuch  information,  in  open  court)  certify  upon 
record,  that  there  was  a  reafonable  caufe  for  exhibiting 
fuch  information ;  and  in  cafe  the  faid  informer  or  inform* 
ers  (hall  not,  within  three  months  next  after  the  faid  cofts 
taxed^  and  demand  made  thereof,  pay  to  the  faid  defen- 
dant or  defendants,  the  iaid  cofts,  then  the  (aid  defendant 
arid  defendants  ftiall  have  the  benefit  of  the  iaid  recog- 
nizance to  compel  them  thereunto/' 

1*HE  words  in  the  beginning  of  the  a£^  ^  that  he  (hall 
not,  without  leave  of  the  court,  file  any  information,  nor 
ifTue  out  any  proce(s  thereupon,  before  he  ihall  have  takien  a 
recognizance,'' are  fomewhat  ambiguous^and  might  be  con» 
ftrued,  "  that  after  he  had  taken  a  recognizance,  he  might 
file  an  information  without  leave;"  But  the  true  conftruc* 
.tion  has  been  held  to  be,  ^^  that  he  (hall  file  m  information 
without  leave,  nor  liTue  out  any  procefs  thereupon  without 
recognizance  {a). 

To  whatever  fum  the  cofts  of  the  defendant  may  amount, 
he  cannot,  on  this  ftatute,  have  mor^  than  the  amount  of  thp 
recognizance  [b) ;  opr,  Q(a.  the  application  for  an  informa* 
tion,  will  the  pourt  compel  the  profecutor  to  give  fecurity 
for  the  cofts  over  and  above  the  2ol.  U)*    . 

By  ftatute  9  Ann.  c.  20,  after  reciting  "  that  divers 
perfons  had  of  lat^  illegally  intruded  themfelves  into,  and 
taken  upon  themfelves  to  execute  the  offices  of  mayors^ 
bailiffs,  portreeves,  and  otlter  offices,  within  cities,  towns 
frorporate,  boroughs  and  placesy  wjtbin  that  part  of  Great 
Piitain  called  England  and  Wales;  and  where  fuch  oflices 
were  annual  offices,  it  had  been  found  very  difficult,  if  not 
imprafticable,  by  the  laws  tjien  jn  being,  to  bring  to  atria( 

(a)  Pr.  Ld.  Hardwicke,  iq  Rex.  v.  Howell,  B,  R.  P,  148. 

(b)  Id.  ibid.  2  Str.  .1042.    a  Term  Rep.  147, 
(0  2  Terra  Rep.  197^ 

and 


OF    CORPORATIONS.  4I3 

and  determination  the  right  of  fuch  perfons  to  the  faid  of- 
fices, within  the  cotnpafs  of  the  year,  and  where  fuch  of- 
fices were  not  annual  offices,  it  had  been  found  difficult  to 
try  and  determine  the  right  of  fuch  perfons  to  fuch  offices, 
before  they  had  done  divers  z&s  in  their  <aid  offices,  preju- 
dicial to  the  peace,  order,  and  good  government,  within 
fiich  cities,  towns  corporate,  boroughs,  and  places,  in 
which  they  had  refpcdlively  adked:*'— it  is  enafted(^) 
^^  that  for  the  future,  in  cafe  any  perfon  or  perfons  ifaall 
ufurp,  intrude  into,  or  unlawfully  hold  and  execute  any  of 
the  faid  offices  wfranchifes  (i),  it  (hall  and  may  be  lawful 
for  the  prcptr  officer  in  each  of  the  refpedlive  courts  ♦  of 
King's  Bench,  feffions  of  counties  palatine^  and  great 
feffions  of  Wales,*  with  the  leave  of  the  talA  courts  refpec- 
tively,  to  exhibit  one -or  more  information  or  informations 
in  the  nature  of  a  quo  warranto,  at  the  relation  of  any 
perfon  or  perfons,  defiring  to  fue  or  profecute  the  fame, 
and  who  Jball  be  mentioned  in  fuch  information  or  informa- 
tions to  be  the  relator  or  relators  againfl  fuch  perfoq  or  per- 
fons, fo  ufurpin^  intruding  into,  or  unlawfully  holding  and 
executing  any  of  the  faid  offices  or  franchifes,  and  to  pro- 
ceed in  fuch  manner  as  is  ufual  in  cafes  of  information  in 
the  nature  of  quo  warranto;  and  if  it  fliall  appear  to 
the  faid  refpeftive  courts,  that  the  feveral  rights  of  divers 
perfons  to  the  faid  offices  or  franchifes,  may  properly  be 
determined  on  one  information,  it  Aall  and  may  be  lawful 
for  the  faid  refpe£tive  courts  to  give  leave  to  exhibit  one 

(4)  S.  4. 

(i)  This  i-elatcs  to  the  place  of  burgcfs  or  freeman,  which  is 
mentioned  in  that  pait  of  the  preamble  which  relates  to  mandamuses ; 
fo  that  though  the  preamble,  with  rcfpe6t  to  quo  warrantors,  does  not 
mention  the  place  of  freeman  or  burgefs,  the  ena^ing  part  gives  a  re- 
medy againA  an  intruder. 

2     .  fuch 


414  T  H  E    t  A  vr 

fuch  infonnation  againft  feveral  perfons,  in  order  to  try 
their  refpe£Hve  rights  to  fuch  offices  or  fraAchifes,  and 
fuch  perfon  or  perfons  againft  whom  fuch  information  or 
informations  in  the  nature  of  a  qvo  Wahraktto  (hall  be 
fued  or  profecuted,  (hall  appear  and  plead  as  of  the  fame 
term  or  feffions  in  ^ich  the  (aid  information  or  informa- 
tions (hall  be  (iled,  unlefs  the  court  irrfiere  (uch  informa- 
tion (hall  be  (iled,  fliall  give  further  time  tafuch  perfon  or 
peribns,  agsdnft  whom  fuch  inibrmAtion  (hall  be  ejihibitud, 
to  plead ;  and  (uch  perfon  or  perfons^  who  (hall  fue  or 
profecute  fuch  information  or  infbrmatiohs  in  die  nature 
of  QUO  WARRANTO,  (hall  proceed  thereupon  with  the 
moft  convenient  fpeed  that  may  be ;  any  law  or  uiage  to 
the  contrary  notwithffanding/* 

**  And  in  cafe  any  perfon  or  perfons,  againft  whdm  any 
information  or  informations,  in  the  nature  of  a  quo  war- 
ranto, (hall,  in  any  of  the  faid  cafes,  be  exhibited  in  any  of 
the  faid  courts,  (hall  be  found  or  adjudged  guilty  of  an 
ufurpation,  or  intrufion  into,  or  unlawfully  holding  and 
executing  any  of  the  faid  franchifes,  it  (hall  and  may 
be  lawful  for  the  faid  courts  refpefUvely,  as  weQ  to  give 
judgment  of  ou/fer  againft  fuch  perfon  or  perf<Mis,  of  and 
from  any  of  the  faid  offices  or  franchifes,  as  to  fine  fuch 
peffon  or  perfons  refpe£tiTely>  for  his  or  their  ufurping,  in- 
truding into,  or  unlawfully  holding  and  executing  any  of 
the  &id  offices  or  franchifes ;  and  alfo  it  fliall  and  may  be 
lawful  for  the  faid  pourts  refpe£tively,  to  give  judgment, 
that  the  relator  or  relators,  in  fuch  information  named, 
(hall  recover  his  or  their  cofts  of  fuch  profecution ;  ^md  if 
judgment  (hall  be  given  for  the  defendant  or  defendants  in 
fuch  information,  he  or  they  for  whom  fuch  judgment  (hall 
be  given,  (hall  recover  his  or  their  cofts  therein  expended  { 

againft  fuch  relator  or  relators"*  i        ■     f,  5.  J 


V 


I- 


OF    CORPORATIONS.  4X5 

The  court  may  aBow  convenient  time  to  the  defendant 
or  profecutor,  to  plead,  reply,  rejoin,ordemur,— — f.  6, 

And  the  ftatute  for  the  amendment  of  the  law,  and  all 
the  ftatutes  of  Jeofayles,  are  extended  to  proceedings  under 
this  a£t.  ■    ■■■     f.  7.  . 

Th£S£  two  ftatutes  leave  the  power  of  the  attorney 
general  with  refped  to  filing  informations,  whether  in  the 
nature  of  quo  warranjtOy  or  not,  exactly  as  it  was  at  com- 
mon law ;  for  that  of  4  and  5  W.  and  M.  exprefsly 
provides,  that  it  iball  not  be  conftrued  to  extend  to  any 
THher  information  than  fuch  as  fhall  be  exhibited  in  the 
name  of  their  Majefties  coroner  or  attorney  in  the  court 
of  King^s  Bench  for  the  time  being,  commonly  called  the 
Matter  of  the  Crown  Office  :  and  that  of  9  Anne  only 
introduces  feme  provifions  with  refpeft  to  informations  in 
cafes  within  the  meaning  of  it,  filed  in  the  name  of  the  lat- 
ter officer  (^).  In  point  of  fadl  there  are  feveral  records 
in  the  crown  office,  of  informations  in  the  nature  of  quo 
warranto,  filed,  in  the  name  of  the  attorney  general,  in 
the  intermediate  time  between  the  two  ftatutes,  and  fince 
the  paffing  of  the  laft,  as  well  in  cafes  within  the  meaning 
of  the  laft,  as  in  other  cafes  (^). 

Whether  the  ftatute  of  4  and  5  W,  and  M.  extends 
to  informations  in  the  nature  of  quo  warranto,  depends 
on  the  queftion,  whether  the  King's  coroner  and  .attorney 
either  had  before,  or  has  fince  that  ftatute,  a  power  to  file 
fuch  informatiops  :  if  he  had  that  power  before,  the  ftatute 
does  not  take  it  away ;  if  he  had  not,  the  ftatute  does  not 
give  it  him  {c):  if  he  had  it  before,  th^  ftatute  clearly  ex- 
tends to  fuch  informations;  b^aufe,  though  it  may  beob- 

(^z)  Vid.  ft  Hawk.  Leach,  371. 

(b)  For  this  informatioiv  I  am  indebted  to  Mr.  Dealtiy,  of  the 
crown  office*  (r)  Per  Ld.  Mansfield,  3  Bur.  s  81 7. 

je£tedy 


y 


\ 


4l6  THB    LAW 

jeded,  that  an  information  in  the  nature  of  a  quo  warranto, 
being  a  mode  of  trying  a  right,  is  not  within  the  meaning 
of  the  ftatute,  which  mentioning  trefpafies,  batteries,  and 
other  mifdemeanors^  may  reafonably  be  conftrued  to  intend 
fuch  other  mifd^meanors  as  before  fpecified  \  yet  as  this  is 
a  remedial  law,  and  therefore  ought  to  be  liberally  con- 
ftrued ;  and  as  informations  in  the  nature  of  quo  warranto 
may  be  as  vexatious  as  any  other ;  as  they  always  fuppofe 
the  ufurpation  of  fome  franchife,  and  every  fuch  ufurpation 
-is  a  mifdemeanor,  the  ftatute  certainly  extends  to  fuch  in- 
formations, if  the  King's  coroner  and  attorney  had  the 
power  of  filing  them  {a). 

Whether  there  be  any  records  in  the  crown  office  of 
informations  in  ,the  natute  of  duo  warranto  filed  in  the 
name  of  this  officer  previous  to  this  ftatute  of  W.  and  M. 
I  have  had  no  opportunity  of  learning ;  but  I  have  not  been 
able  to  find  the  report  of  any  fuch  cafe :  very  foon  afier 
the  ftatute,  however,  fome  cafes  of  this  kind  are  reported, 
and  the  records  of  more  appear  in  the  office :  in  the  5th  of 
Anne,  particularly,  there  are  are  feveral  records  of  infor- 
mations fbr  ufurping  offices  within  the  provifions  of  the 
9th  of  Anne,  as  mayor,  bailiff,  capital  burgefe(^),  which 
clearly  (hews,  that  this  latter  ftatute  did  not  firft  introduce 
thefe  informations,  but  only  made  fome  provifions  with 
refpe£l  to  the  profecution  of  them.  Since  the  ftatute  of 
Anne,  there  are  many  inftances  of  informations  in  the 
nature  of  quo  warranto,  in  cafes  manifeftly  not  on  that 
ftatute.  . 

By  an  examination  of  the  cafes,  the  diftin£tion  between 
the  power  of  the  attorney  general  and  the  mafter  of  the 
crown  office  feems  to  be  this,  that  the  power  of  the  lat- 

(a)  Vid.  1  ffiwk.  Leacb,  37^. 
(^)  Ex  infQrmatione  Mr.  Dealtry, 

.  ter 


OP    CORPORATIONS.  4I7 

ter  is  confined  to  cafes  which  concern  the  public  govern- 
ment, whereas  that  of  the  former  extends  alfo  to  cafes 
which  only  concern  the  private  rights  of  the  crown  [a). 

In  Hilary  term,  10  William  the  third,. an  information, 
in  the  nature  of  quo  warranto,  was  permitted  to  be  filed, 
by  the  mailer  of  the  Crown  Office,  againft  the  mayor  and 
aldermen  of  Hertford,  to  fhew  by  what  authority  they  ad- 
mitted perfons,  who  did  not  refide  within  the  borough,  to 
the  freedom  of  the  corporation  (b).  The  court  made  no 
queftion  about  tlie  power  of  the  coroner,  by  the  leave  of 
the  court,  to  fie  the  information,  and  thought  it  a  proper 
.  proceeding,  becaufe  there  was  no  other  way  to  try  the 
queftion  of  right,  nor  to  redreis  the  parties  concerned. 
But  they  held  that  he  ought  to  have  taken  a  recognizance, 
and  fet  aiide  the  procefs,  becaufe  he  had  omitted  fd  to  do. 
This  fhews  clearly  that  the  court  thought  the  ftatute  of 
William  and  Mary  extended  to  informations'  in  the"  nature 
of  quo  warranto^  and  confeqiiently  that  they  made  no 
doubt  about  the  power  of  the  coroner  and  attorney  to 
exhibit  fuch  informations  at  common  law. 

In  Eafter,  1 1  W,  3,  a  rule  was  made  on  T.  Warbur- 
ton,  Efquire,  late  mayor  of  Holt,  in  Denbighfhire,  to 
fhew  caufe  why  ah  information  fhould  not  be  exhiblfed 
againft  him,  to  fhew  by  what  authority  he  claimed  the 
privilege  of  eleding  and  fwearihg  foreigners  to  be  bur- 
gefles  of  the  faid  borough,  without  the  cohfent  of  the  bai- 
liffs and  burgefles :  arid  in  the  term  following  the  rule  was 
made  abfolute, 

(a)  Vid«  %  Ld.  Raym.  1409.  B*  R«  H.  261,  Str.  637.  3  Bur* 
]Si49  1817. 

(b)  I  Ld.  Raym.  4^6.  1  Salk.  55^  374,  376.  Carth«  503.  Vid. 
vol.  I,  337. 

Vol.  11.  £  e  From 


4l8  THK    LAW 

F&oii  diis  dme  to  die  3  s  G.  2^  fereral  infonnadons  (o 
tbe  lame  cflS^  were  filed;  and  in  Midiaelmas,  9  G.  j, 
an  applicadop  being  made  for  leaye  to  file  an  informadon 
of  the  ilune  kind,  againft  the  mayor  and  town  clerk  pf 
Northampton,  the  court  had  at  firft  fome  difficulty  abo\it 
granting  it^  and  ordered  a  iearch  for  precedents ;  on  which 
thofe  before  mendoned  being  found,  diey  permitted  an  in- 
fonpadon  to  be  exhibited  {a). 

In  the  6  G.  I,  an  informadon,  in  the  nature  of  quo 
warraotOi  was  permitted  to  be  filed  againft  certain  perfops 
for  a^ng  as  truftees  under  an  z£t  of  parliament  (^). 

)n  10  G.  I,  two  feveral  informadons  were  granted 
againft  certain  perfons  for  letting  up  (kin  markets  in  Smith- 
field  (c), 

1h  14  G.  %j  after  feveral  previous  applicadons,  a  rule 
was  made  abibjute  againft  feveral  perfons  vdio  negleSed  to 
ihew  caufe  for  holding  a  market,  butdifchargedas  agaii|ft 
two,  becaufe  the;y  had  neither  taken  toU,  nor  fet  up  or 
ehcouraged  the  market,  nor  pretended  any  right  to  it,  but 
on  the  contrary  difolaimed  it  (d]i 

In  18  G.  Zy  a  rule  was  made  abfolute  for  ^  informadpn 
againft  one  Wilkins  for  holding  a  &ir  (e). 

In  the  if  G«  i,  the  court  granted  an  infprmadon,  in 
nature  pf  a  quo  warranto^  againft  the  defendant  for  exer- 
xifing  the  office  of  fteward  of  a  court  leet ;  but  faid  they 
Would  not  grant  it  in  the  cafe  of  a  pourt  baron,  as  that  was 
pnly  a  private  right  (/). 

^In  12  G.  I,  the  court  reftifed  an  application  for  leave  to 
file  an  informatipn  againft  Sir  WiUiam  Lowther,  for  fetr 

(a)  Rexv.  Breton,  &c.    4Bur.226o»    Vid.  ante,  113,  114. 
(h)  Str.  299.    3  Bur.  1822.  (c)  3  Bur.  1S189  18209  in  marg. 

id)  3  Bur.  X8209  iSix*  >8s9t.  (<)  3  Bur.  1814,  1818. 

(/)  Rex  V.  Hulfton,  Str.  tiii. 


OF    CORPORATIONS.  419 

ting  up  a  free  warren,  on  the  ground  that  it  was  only  of  a 
private  nature,  and  therefore  proper  to  be  profecuted  only 
in  the  name  of  the  attorney  general,  if  the  King  fhould 
think  fit  (tf). 

In  9  G.  2,  a  fimilar  application  was  refufed  on  the  fame 
ground  (^), 

In  2  G.  2,  an  tnformatien,  in  the  nature  of  quo  war-* 
ranto,  was  granted  againft  baUiiF$^and  others  for  levying 
a  rate  within  a  town  (c). 

In  3  G,  2,  againft  a  perfon  for  afting  as  bailiff  within 
a  place  not  a  corporation  {a)^ 

In  15  G.  2,  the  court  held,  that  an  information,  in  the 
nature  of  quo  Warranto,  would  lie  for  claiming  an  exclti^ 
Jive  ferry  over  the  .Thames  j  but  in  the  cafe  before  then^ 
difcharged  the  rule  which  had  been  made  againft  the  dip- 
fendant,  becaufe  it  appeared  that  he  only  took  money  of 
the  paffengers,  which  did  not  s^ount  to  letting  up  an  ex-^ 
clufive  right  {e)n 

In  18  G.  2,  an  information,  in  the  ns^ture  of  qi|o  war-? 
ranto,  againft  one  Goudge,  for  exercifing  the  office  of  a 
conftable  for  Whitechapel  (/*),  and  a  fimilar  cafe  cited,  in 
which  the  court  had  made  no  difficulty  with  refpedt  to  the 
power  of  granting  the  information,  but  difcharged  the  rule 
upon  the  merits  (^}." 

In  31  G.  2,  a  writ  of  error  was  brought  in  the  King's 
Bench,  on  a  judgment  giyen  in  the  court  of  great  feffion, 
in  the  county  of  Denbigh,  againft  the  defendant,  after  4 

(/?)  Sir  William  Ltowther's  cafe,  2  Ld.  Raym.  1409. 
{b)  Ibbotfon's  cafe,  B.  R.  H.  a6i. 
{c)  This  appears  from  the  records  of  the  Crown  Office. 
{d)  Rex  v.  Boyles,  %  Stf.  836.    %  Ld.  Raym.  1559. 
(^)  Rex  V.  Sir  Thomas  Reynell,  2  Str.  1x61,  3  Bur.  i8i8|  JS2Q9 
in  marg.  (/)  Rex  v.  Goudge,  a  Str.  1413. 

(jfi  Rex  v«  Ffanchard,  2  Str.  1149. 

E  e  2  y        verdi£t 


^  I 


^20  T  H  E    L  A  W 

verdi<9:  on  an  information  brought  againft  him  ill  that  coiirt 
by  the  prothondtary  and  clerk' of  the  crown  there,  at  the 
relation  rf^  ■  ■>  according  to  thejorm  of  thtjlatute  in 

that  cafe  made  and  provided. 

The  information,  after  fetting  forth  the  conftitution  of 
the  town  of  Denbigh,  and  other  neceflary  preliminaries, 
charged  the  defendant  with  holding  a  court  of  record  within 
the  borough,  without  any  legal  warrant. 

The  defendant  pleaded,  that  he  did  not  hold  the  cour^ 
and  difclaimed  any  right  to  hold  it. 

On  ifTue  joined  on  this  plea,  the  jury  found  that  th6  de- 
'  fendatit  had  held  the  court,  and  that  he  had  no  legal  War- 
rant fo  to  do. 

The  court  gave  judgment  of  oufter  againft  him,  and 
that  the  relator  fhould  recover  his  cofts,  according  to  the 
form  of  thejiatute  tnfuch  cafe  made  and  provided. 

On  the  writjof  error  the  court  of  King's  Bench  con- 
firmed the  judgment  as  to  the  oufter  of  the  defendant,  but 
reveried  it  as  to  the  cofts ;  on  the  ground  that  the  infor- 
mation did  not  charge  the  defendant  with  ufurprng  the  office 
of  bailiff,  but  only  with  doing  a  fingle  a6l  which  belonged 
to  that  office ;  and  that  therefore  this  was  not  a  cafe  within 
the  ftatute  of  Queen  Anne  [a).  This  was  plainly  admit- 
ting, that  independently  of  that  ftatute,  an  information, 
in  the  nature  of  quo  warranto,  might  be  exhibited  by  the 
prothonotary  of  the  court  of  great  feffions,  and  coiife- 
quently  by  the  King's  coroner  and  attorney  in  the  court  of 
King's  Bench. 

In  the  6  G.  3,  an  application  being  made  for  an  infor- 
mation, in  the  nature  of  quo  warranto,  againft  feveral 
peribns  for  holding  a  public  fair  or  market  at  Wakefield, 
on  every  other  Wednefday ;  the  court  exprefled  fomc  doubt 

{a)  Rex  v.  Williamsj  i  Bur.  401, 

whether 


O  F    C  O^^Pfi  RATIONS.  4II 

» 

whether  an  information,  in  the  nature  of  quo  Warranto* 
would  lie  in  the  name  of  the  clerk  of  the  crown,  on  the 
application  of  a  pfiivate  perfon :  bjut  on  feveral  of  the  cafes 
before  mentioned  being  cited,  they  granted  a  rule  to  fhew 
caufe:  on  caufe  being  fhewn^   the  court  ftill  expreUed 
doubts  on  this  point  ^  but  faid,  they  were  not  called  upon 
now  to  determine  it,  as  dn  the  merits  of  the  cafe  befpre 
them  the  rul?  mul^  he  difch^arged.    Cj)n  the  day  after^  how* 
ever,  iever^l  of  the  caf^s  before  mentioned  being  cited^ 
Lord  Mansfield  faid,  they  fupported  the  determination  of 
yefterday,  but  that  at  the  fame  time  they  fupportbd  the 
^,^»^r<7/.  ground  on  which  the  motion  was  founded j  and 
Mf .  J.  Wilmot  confefled  they  were  ftrong,  but  iaid  this 
\^as.  a  matter  of  future  confideration,  when  any  future  ap* 
plication  (hould  be  made. 

Loi^D  Mansfield  faid,  if  any  fuch  application  fliould 
be  made  in  future,  it  would  be  proper  to  fearch  the  Crown 
Oifice,  to  fee  whether  there  were  any  inftances  of  inform 
mations,  in  the  nature  of  quo  warranto,  filed  by  the  clerk  of 
the  crown  in  corporation  caufes  before  the  9th  of  Anne  {a)% 
Xh  AT  fearch  has  been  made  (^),  and  the  event  is  in  fa* 
vour  of  this  ofHcer^s  power,  which  fo  many  fubfcquent 
cafes  Qpnfim— particularly  the  cafe  of  the  mayor  and  town 
clerk  of  Northampton  before  mentioned  (c). 

The  ftatute  of  Queen  Anne  gives  full  cofts  on  verdi<£l: 
or  judgment  to  the  fuccefsful  party,  whether  relator  or 
defendants  but  it  is  only'm  cafe  of  verdift  or  judgment 
that,  under  this  ftatute,  the  defendant  can  have  coils  for  a 
grpiindlefe  profecution ;  but  it  has  been  decided,  that,  if 
the  profecutor  do  not,  at  his  own  cofls,  procure  the  infor- 
mation to  Retried  within  a  year  after ifliie  joined,  thede-, 

{a)  Rex  y.  ^Jarfden,  et  d',  3  Bur.  1812,  xStft. 
{b)  Vid,  ante,  p.  416,  (r)  P.  418* 

t  .  £  e  3  .  fendant 


h 


4^2  THE     LAW 

fendant  is  intitled  to  the  benefit  of  the  recognizance  under 
the  ftatute  of  William  and  Mary  (^)  :  which  is  a  fufficient 
proof  that  the  judges  who  fo  decided,  thought  that  at  the 
time  of  paffing  the  latter  ftatute,  the  matter  of  the  Crown 
Office  was  in  pofleffion  of  the  power  of  filing  informal 
tions  in  the  nature  of  quo  warranto,  even  in  cafes  within 
the  meaning  of  the  ftatute  of  Anne* 

What  cafes  are  within  the  meaning  of  that  ftatute  has 
been  the  fubjedl  of  feme  cdntroverfy,  as  the  fuccefiful 
party  is  intitled  to  his  cofts  only  in  fuch  cafes. 

The  words  of  the  ftatute  are,  **  the  offices  of  mayors, 
bailiffs,' portreeves,  znd  other  offices  within  cities,  towns 
corporate,  boroughs  and  places  :**  the  queftion  has  been 
whether  thefe  words  ex^refs  only  corporation  offices,  or 
whether  they  extend  to  offices  in  boroughs  and  9ther  places 
not  corporate.-^In  favour  of  the  latter  opinion  there  are 
many  inftances  in  the  Crown  Office  between  the  i  z  Anne, 
and  32  G.  3,  of  full  cofts  having  been  taxed,  in  cafes  of 
information  for  offices  in  boroughs  fending  members  to 
parliament,  but  not  incorporated;  and  between  10  G.  i, 
and  24  G.  3,  in  places  neither  incorporated  nor  fending 
members  to  parliament  {b). 

In  favour  of  the  former  opinion  we  have  feveral  inci- 
dental obfervations  in  the  cafes  of  the  King  and  Williams, 
and  the  King  and  Marfden,  and  a  folemn  decifion  in  the 
cafe  of  the  King  againft  William  Wallis  and  William 
Barrs,  in  the  34  G.  3.— In  the  cafe  of  Williams  (r). 
Lord  Mansfield  faid,  the  a6l  was  meant  to  extend  to  all 
officers  of  corporations  as  fuch  j  but  that  it  was  not  within 

{a)  Rex  V.  Howell,  B.  R.  H.  247.    Rex  v.  Morgan,  »  Str.  104«> 
which  appear  to  be  the  fame  cafe  under  different  names. 
(^)  For  this  information  I  am  indebted  to  Mr.  Dealtry. 

{0  Ante,  p.  420, 

-the 


O^    CORPORATIONS^  4iJ 

the  reafon  and  meaning  of  the  ad,  that  It  (hould  extend 
generally  to  all  offices  or  franchifes  exercifed  without  au- 
thority from  the  crown,  within  a  corporation :  and  that  it 
was  meant  to  be  confined  to  fuch  franchifes  as  Were  claimed 
in  inftances  aSe<SUng  thofe  rights  between  patty  and 
party. 

In  the  fame  cafe,  Denifon  and  Fofler,  J.  faid,  the 
word  "  franchifes"  in  tie  a<3:  meant  only  corporate  rfghts^ 
or  rights  to  freedom  in  corporations. 

In  the  cafe  of  Marfden(tf),  Yates,  J.  faid  in  expref^ 
terms,  that  the  flatute  9  Anne  extended  6nly  td  corporation 
ofEces. 

The  cafe  of  the  King  againfl  William  Wallis  and  Wil* 
liam  Barrs  was  an  information,  in  the  nature  of  quo  war4 
ranto,  at  the  relation  of  R.  JT/wf,.  againfl  the  defendants^ 
calling  on  them  to  fhew  by  what  warrant  they  afted  a^  con- 
ftables  of  Birmingham.    The  defendants  pleaded  an  elec- 
tion by  a  jury  at  a  court  leet,  the  ifTue  taken  on  which  was 
found  for  the  Crown.    Judgment  of  oufler  w^s  afterwards 
entered  up,  and  judgment  alfo  for  the  cofls,  which  wer^ 
taxed  at  2461.  los.  ^d.    On  this  a  rule  was  obtained  by 
the  defendants,  calling  on  the  profecutor  to  fhew  caufb 
why.  the  taxation  of  cofh  fhould  not  be  fet  afide,  on  th^ 
ground  that  this  was  not  a  cafe  within  the  flatute  of  Anne* 
After   caufe   was  fhewn,  the  court  exprefTed  their 
opinion,   that  the  preceding  incidental  obfeirvatiohs  had 
decided  the  queflion,  and  decided  it  rightly;    that  the 
word  "places"  in  the  aft,  only  extended  to  offices  in- placed 
of  the  fame  kind  with  thofe  before  enumerated ;  that  the 
cafes  recorded  in  the  Crown  Office  were  iii  fail  reducible 
to  two,  and  as  thefe  had  paiTed  without  argument,  they 
could  not  weigh  much  in  oppofition  to  thofe  obfervations^ 

(a)  Ante,  p.  421. 

E  e  4  /  it 


4^4  THE    LAW 

It  was  likewife  remarked,  that  there  was  a  inateriatdiffef-» 
coce  between  the  cafe  of  a  peribn  who  was  compellable  to 
take  upon  himfelf  a  burthenfome  office,  which  he  could* 
notrefufe  without  being  liable  to  an  indidment,'aiKl  ihsJt 
of  a  perfon  who  voluntarily  undertook  an  office  fronk* 
which  he  expeAed  perfonal  importance  or  (bme  other  ad--' 
vantaire :  and  that  it  was  unrealbnable  that  a  perfon  fun-, 
pofed  to  be  elected  into  an  office  of  the'firft  defcriptionV 
i^hich  that  of  t}ie  prefent  defen&nts  was^  ihouldl  be  liabfe 
to  pay  the  cofts  of  a  profecution  for  oufting  him,  on  aic- 
count  of  fomb  defe£l  in  his  ele^on  (a). 

The  cafes  in  which  informations  in  the  nature  of  quo* 
warranto  are  granted  under  this  a£t,  are  where  a  man  ex-* 
crcifes  a  corporate  franchiie,  or  a^  as  a  corporate  officer, 
without  having  been  duly  elected  and  fwom  or  admitted, 
and  where  the  office  of  a  corporate  officer  becomes  void  by 
fpmething  fubfequent.— The  objeftions  to  ah  eleftion  arife  . 
either  from  the  previous  ineligibility  of  the  perfon  eleded, 
t)ie  illegality  of  the  votes  of  the  ele£tors,  or  the  irregu* 
larity  of  the  efeftion  itfelf ;  for  all  of  which  the  reader  mutt 
I?e  referred  to  former  parts  of  this  work  (b)  ;  as'  he  muft 
adfo  for  the  regularity  of  fwearing  and  admlffion. 

It  has  been  feen  (r),  that  where  a  perfon  in  poBe&6k 
of  one  corporate  office  is  elected  to  another  incotnpatible 
with  the  firft,  the  firft  is  void:  and  therefore,  where  he 
continues  to  exercife  the  duties  of  the  firft,  an  information^ 
in  the  nature  of  quo  warranto^  will  lie  againft  him  fdt  fb 
doing. 

So,  where  a  perfon  in  pofleffion  of  an  office  incurs  a 
forfeiture,  he  may  be  removed  by  the  proper  body  {a)  5 

(«)  Rex  V.  Waiiam  Wallis  and  William  Sarrs,  5  Tenn  Rep.  375. 
{b)  Vid.  iyi  voL  1,  c.  3,  f,  6,  7,  and  vol.  a,  c.  3,  f.  8,  per  tot. 
(f )  Vol.  X,  369—375.  (i)  Vid.  c.  3,  f.  9,  vol.  a,  50. 

3  and 


OF    CORPORATIONS.  425 

and  theti^  if  he  contlinue  to  execute  the  offite,  a  quo  war* 
rantO'  inFormatton  lies  againft  him* 

But  tin  he  is  aftoally  removed  an  i^iformation  does  not 
h'e ;  becatife  the  corporation,  or  feieft  body  pofieiBngL  the 
poi)i^r  of  athotion,  are  the  beft  judges,  in  thefirft  inAdtiee^ 
how  hx  mi&ondad  or  negled  may  be  acaufe  of  i%v£- 
feiture  (a).  If  from  corrupt  motives  the  corporation-  neg- 
left  or  refufe  to  exercife  their  power  of  Mttotion,;  the 
court  of  King's  Bench,  on  a  proper  cafe  being  laidWefore 
them,  will  grant  a  mandamus  to  compel  them  (h). 

To  fubjeft  a  manto  an  information  in  nature  of  quo 
warranto,  it  is  necei&iythat  there  (hould  be  not  only  a 
claintj  but  an  uferoi  the  franchife. 

Thus,  where  an  information  filed  in  the  court  of  King's^ 
Bench  in  Ireland,  againft  nine  perfons,  charged  tire  de« 
fcndants  with  uftirping  the  franchifes  of  free  burgeflfcs  of 
the  corporation  of  Newton,  in  that  kingdom }  the  defend* 
ant  Ponfonby  and  another  of  the  defendants  pleaded  that 
they  were  duly  elefted  free  burgeffes,  but  that  they  had 
neither  been  fworn  nor  had  executed  the  franchifes^;  and 
diey  traverfed  the  ufiirpation ;  the  profecutor  replied-,  thai 
due  notice  had  been  given  them  of  their  having  been  eleded 
free  burgefies,  and  that  they  had  negleftcd  to  be  fv^'orii.— 
On  a  general  demurrer,  judgment  was  given  a^aiAft  fhen»^ 
as  well  a^  the  other  (even ;  and  part  of  the  judgment  was, 
diat  the  defendants  fliould  be  oufted  of  th^ir  franchifes*  On 
a  ^rit  of  error  to  the  King's  flench  in  England)  this  judg« 
riicnt  was  reverfed,  on  the  principle,  that  judgment  of 
tujitr  ought  fiot  to  be  given  in  an  inforniation  in  the  nature 
of  qiio  warranto,  urilefs  the  cafe  of  the  defendant  was 
within  thfe  ftatutc,  which  the  cafe  of  thefe  two  defendants 

{a)  Vid.  ante,  p.  53.  i  Str.  8«o.  Sayer,  247,  448,  Rtx  v.  Hea- 
ven, a  Term  Rep.  77*.  (^)  Sayer,  »4?,  a^'j, 

was 


426  THE      LAW 

was  hdd  not  to  be :  for  as  they  had  negleded  to  be  Cwcnra, 
the  corporation  might  either  have  compellsd  them  to  be 
fwom,  or  might  have  elected  other  burgefles:  butasthejr 
were  not  fworn,  and  hadnot.exercifed  thefranchUes,  they 
had  never  been  in  pofleffion  of  them,  and  confequend  7  could 
not  be  liable  to  a  judgment  of  oufter  for  ufurping  them  (^^. 

On  an  application  for  an  information  againll  one  Whit- 
well)  for  claiming  to  be  iherifF  of  Coventry,  it  appeared 
that  the  defendant  had  been  ele&d  to  the  office,  and  had 
tendered  himfelf  to  be  fworn }  but  that  it  was  thought  not 
expedient  to  adminifter  the  oath,  as  be  had  not  taken  the 
Ikcrament  within  one  year  next  before  his  eledtion. 

In  fupport  of  the  application  it  was  urged,  that  as  the 
defendant  infifted  on  his  eledlion,  there  could  be  no  fheriff 
capable  of  a£ling  for  the  city,  if  it  were  refufed.    For  that 
the  court  would  not  grant  a  mandamus  to  the  corporation 
to  proceed  to  another  election,  nor  grant  a  criminal  infor- 
mation againft  the  defendant  for  not  taking  upon  him  the 
office,  as  that  might  fubjedl  him  to  the  penalties  of  ano- 
ther law  {b) :  and  that  if  the  court  were  not  now  to  inter- 
pofe,  the  defendant  would,  after  the  expiration  of  fix  months 
from  the  time  of  his  eledlion,'  take  upon  himfelf  the  adual 
exercife  of  the  office,  without  receiving  the  facrament  or 
taking  the  oaths  (^ }• 

Thb  court  obferved,  that  no  inftance  had  been  produced,, 
where  an  information,  in  the  nature  of  quo  warranto,  had 
been  granted  againft  a  party  who  had  not  been  in  the  ac- 
tual pofTeffion  of  the  office  or  exercife  of  the  franchife; 
that  in  the  cafe  of  Ponfonby,  the  court  had  exprefily  held 
there  muft  be  an  ufer  as  well  as  a  Glaim  in  order  .to  found 
fuch  an  application :  in  the  prefent  cafe,  the  defendant  did 

{a)  Rex  V.  Ponfonby  and  eight  others,  Sayer,  245, 

ib)  Vid.  vol.  I,  p.  H7>  397.  {c)  Vol.  i,  p.  34-5>  34^-. 

not 


OF     C  O  R  P  O  R  A  T  I  O  N  S.  /^.2^ 

npt  claim  to  exercife  the  office  of  fherifF;  he  only  claimed 
a  right  to  take  the  oaths  of  office,,  in  order  that  he  might 
be  invefted  with  that  corporate  character:  whether  the 
court 'could  interpofe  by  granting  a  mandamus,  or  acrimi* 
nal  information,  muft  depend  on  the  particular  circum- 
ftances  of  the  cafe,  on  which  they  would  decide,  when  it 
was  regularly  brought  before  them.  They  certainly  could 
not  entertatn  fuch  an  application  as  the  prefent,  no  uier  by 
the  defendant  having  been  pretended  {a). 

Where  the  only  z&  done  by  the  party  agajnft  ^whom 
an  application  is  made  for  leave  to  file  an  information 
in  the  nature  of  quo  warranto,  is  voting  in  an  eledHon 
for  members  of  parliament,  under  any  claim  of  right, 
the  court  will  refufe  it,  on  the  ground  that  an  enquiry  into 
the  right  of  voting  belongs  more  properly  to  the  Houfe 
of  Commons  {b). 

RtJT  in  the  cafe  of  the  borough  of  Horfhani,  in  the 
30  G.  3,  the  court  held,  that  an  information,  in  the  nature 
of  quo  warranto,  would  lie  againft  a  perfon  claiming  to 
have  a  right  of  voting  by  virtue  of  a  burgage  tenement ; 
and  they  faid,  the  point*  had  been  fo  often  ruled^  that  it  was 
too  late  to  raife  the  queftion  (r). 

The  time  within  which  a  title  to  a  corporate  of* 
fice  or  franchife  might  be  impeached  by  a  quo  warranto 
information,  was,  by  the  common  law,  indefinite,  nor 
was  it  till  lately  fixed  by  any  flatute :  the  court,  therefore, 
on  different  occaflons  adopted  a  different  rule,  according 
to  the  circumftances  of  the  cafe. 

In  the  9  G.  i,  an  application  being  made  for  an  informar 
tion  againft  Powell  and  Jones,to  fhew  by  whatauthority  they 

{a)  Rex  V.  Whitwell,  5  Tenn  Rep,  85. 
r    (^)^Rexv.  Harvey,  etal*,  i  Str.  547. 
(c)  3  Term  Rcpi  599,  n, 

claimed 


4l8  THE    LAW 

claimed  to  be  capital  \mrgttks  of  the  borough' of  Bcecb* 
nock^  it  was  fiiggefted,  that  they  were  never  duly  chpfen 
iurgiffeSj  and  confequently  that  they  could  not  be  capital 
btirgeiles :  in  anfwer  to  this  it  was  ftated,  that  Powell  had 
been  a  burgefs,  in  point  of  fad,  ever  fmce  the  year  1708  (a)^ 
and  Jones  imce  1711;  and  contended,  that  it  would  be  of 
ifatal  confequence  to  the  borough,  after  fo  long  an  ac« 
quiefcence,  to  render  void  all  the  corporate  a£te  done  by 
them  during  fo  long  a  period*  But.  the  court  beld^  that 
l6ng  acqutefeence  could  be  no  rcafon  againft  the  rule 
which  was  made  on  the  mere  right;  that  length  of  time 
couldnever  eftablifh  a  right  which  had  been  gained,  by 
ufurpation ;  and  that  a  right  ihould  not  be  intended  when 
the  merits  were  controverted,  and  no  collateral  point  dif«^ 
puted  (b). 

In  the  lo  G.  i,  a  fimilar  application  being  made  againft 
Fyke  and  Prideaux,  to  (hew  by  what  authority  they  claim* 
ed  t6  be  capital  burgeiTes}  they  fwore,  that  they  had  beea 
fourteen  years  in  quiet  pofleffion:  the  folicitor  general, 
who  made  the  application,  cited  the  cafe  of  Alexander 
John,  mentioned  in  a  former  part  of  this  work  (r),  as  an 
authority,  that  length  of  time  was  no  anfwer  to  an  applica* 
ti on  of  this  kind :  but  the  court  refufed  the  information; 
and  faid,  that  the  reafon  why  one  was  granted  againft 
John,*  was,  that  he  had  fupported  himfelf  in  pofleffion  by 
fraud  and  tricks;  but  the  pofleffion  of  the  prcfent  defen-  ^ 

dants  had  not  been  difputed  till  very  lately  (rf). 

If 

And  in  th^  cafe  of  the  King  againft  the  mayor  of  Hel- 
ftone,  in  the  ii  G.  i,  it  appeared,  that  the  defendant  was 

{a)  This  being  \^^^*  (^)  Rex.  v.  Pow*cU  et  al*.    8 Mod.  165. 

(r)  Vid,  vol.  1,381— 384, 

(^  Rex  v.  Fyke,  8  Mod.  a8€,  cited  2  Term  Rep.  4  n.  3  Term 
Rep.  3ii. 

•elcae4 


OF    CORPORAtlONS.  ,435 

eleAed  alderman  eight  years  before;  and  there  was  an 
entry  in  the  corporation  books  of  his  having  talcen  the 
oath  of  office,  and  the  oaths  of  allegiance  and  fupremacy : 
though  the  town  clerk  who  officiated  at  the  time  of  the 
election,  fwore,  that  he  had  not  in  fa£t  adminiftered  the  oath 
of  allegiance,  though  he  made  the  entry  as  it  appeared  to 
be ;  yet  the  court  refufed  an  information,  as  it  was  not  a 
recent  complaint  {a)* 

In  a  cafe  which  occurred  in  the  4  G.  3  {b\  Lord  Manf- 
field  obfertred,  that  no  certain  rule  was  fixed  for  the  par- 
ticular and  exa£b  length  of  time  which  ibould  be  confidered 
as  an  acquiefcence,  and  that,' perhaps,  it  was  better,  that 
none  ^02//^  be  fixed,  becaufe  circumftances  might,  in  this 
refpeft,  very  much  vary  *the  cafe. 

But  afterwards,  in  the  7  G.  3,  application  being  made 
for  informations  againft  a  great  number  of  the  corporators 
of  the  borough  of  Winchelfea,  to  fliew  by  what  .right  they 
claimed  to  hold  their  offices  ;  and  it  appearing  that  fome 
of  them  had  been  in  pofleffion  for  more  than  twenty  years, 
fome  near  twenty  years,  and  fome  confiderably  lefe  than 
that  time ;  the  court  thought  it  right  to  fix  a  certain  point 
of  limitation ;  beyond  which  they  would  not  difturb  a  pof- 
feffion  in  which  there  had  been  a-  long  acquiefcence ;  and 
in  analogy  to  other  cafes  of  limitation,  they  fixed  the 
period  of  twenty  years,  as  the  limit  beyond  which  they 
would,  under  no  circumftances  whatever,  liften  to  an  ap- 
plication of  this  kind  :  but  that  in  every  cafe  within  twenty 
years,  their  granting  or  refufing  the  rule,  would  depend  on 
the  circumftances  of  the  cafe,  that  (hoqld  happen  to  be  laid 
before  them.  They  declared,  however,  that,  notwith- 
ftanding  this  limitation,  a  gfedt  lerigth  of  quiet  pofleffion, 

{a)  Rex  v»  Williams;  Mayor  of  Helftonc,  1  %i\\  677,  cited  3  Term 
,  Rep.  311.  '    {h)  Rci,  v.  Latham  ct  al%  ^3- Bur.  14.85.    . 

though 


430  *  T  H  K     t  A  W 

though  hmcvfhzt  fl>ort  of  this  period,  might  and  ought  to 
be  taken  into  confideration,  as  one  of  the  clrcumftances 
which  might  defervc  to  have  its  due  weight  in  guiding 
their  difcretion.  Many  opportunities  of  defence^  they  faid, 
many  proofs  of  &dls  tending  to  defence,  might  be  loft; 
many  circumftances  might  be  forgotten,  or  not  capable  of 
being  made  out,  after  a  long  undifputed  quiet  pofTeffion, 
which  might  have  been  eafdy  recollefted  or  proved; 
many  witneffes  might  be  dead  or  not  to,  be  found,  who- 
might  cafily  have  been  produced,  if  the  profecution  had 
been  commenced  within  a  recent  and  reafonable  time  (a). 

In  a  fubfequent  cafe  (b),  it  was  fettled  that  the  laft  day 
of  the  twenty  years  fhould  not  be  before  the  day  on  which 
the  court  might  make  the  rule  abfolute  for  granting  the  in- 
formation; fothat  if  the  application  for  a  rule  to  fliew 
caufe  fhould  be  made  on  a  day  fo  near  to  the  expiration  of 
twenty  years,  that  by  the  courfe  of  the  court  it  could  not 
be  mad^  abfolute  within  that  time,  this  alone  fhould  be  a 
fuflicient  reafon  for  rejeiling  the  application. 

The  rule  laid  down  in  thefe  cafes,  was,  on  many  fub- 
fequcntoccafions,  recognized  and  explained  (r),  and  Mr. 
Juftice  Buller,  in  the  cafe  of  the  King  and  Stacey,  alluding 
to  thecafe  of  Pyke  and  Prideaux  before  mentioned,  faid, 
that  if  the  court  fhould  at  any  time' be  difpofed  to  abridge 
the  period  of  twenty  years,  he  fhould  certainly  concur  (^/) : 
in  another  cafe  (e),  he  cited  both  that  of  Pyke  and  Pri- 
deaux, and  that  of  the  mayor  of  Helftone,  as  authorities 
for  abridging  the  time :  and  at  laft,  in  the  cafe  of  the  King 
and  Dickin  fy),  the  court  unanimoufly  laid  down  this  rule, 

{a)  Vid.  the  Winchelfea  caufes,  4  Bur.  1962,  zozz,  2120. 

(b)  Rex.  V.  William  Rogers,  burgefs  of  Helfton,  4  Bur.  2523. 

(f)  Vid.  Cowp.  75,     I  Tprm  Rep.  i,  2  Terra  Rep.  767. 

(d)  1  Term  Rep.  4.  (e)  Rex  v.  Newljng,  3  Term  Rep.  3^0* 

(/)  4  Term  Rep,  282. 

^^  .  "that 


OF    CORPORATIONS.  "    431 

"  that  in  future  they  would  limit  their  own  difcretion  in 
granting  applications  of  this  kind  to  Jix  years,  and  that  be- 
yond this  time,  they  would  not,  under  any  circumftances, 
fufFer  a  party,  who  had  been  fo  long  in  pofleffion  of  his 
franchife,  to  be  difturbed/' 

But  thefe  rules  applied  only  to  applications  made  on 
behalf  of  private  perfons,  and  the  attorney  general  might, 
notwithftanding,  at  any  diftance  of  time,  have  filed  an  in- 
formation in  the  nature  of  quo  Warranto  on  behalf  of 
the  crown.  But  by  32  G.  3,  c.  58,  it  is  enafted,  **  that 
jhe  defendant  to  any  information  in  the  nature  of  quo  war- 
ranto, for  the  exercife  of  any  office  or  franchife  in  any  city, 
borough,  or  town  corporate,  whether  exhibited  with  leaire 
of  the  court,  or  by  his  Majefty's  attorney  general,  ot  other 
officer  of  the  crown,  on  behalf  of  his  Majefty,  by  virtue  of 
any  royal  prerogative  or  otherwife,  may  plead,  that  he  had 
firft  a6lually  taken  upon  himfelf,  or  held  or  executed  the 
office  or  franchife,  which  is  the  fubjedof  fuch  information^ 
fix  years  or  more  before  the  exhibiting  of  fych  informa- 
tion, fuch  fix  years  to  be  reckoned  and  computed  from  the 
day  on  which  fuch  defendant  fo  pleading  was  a<Elually  ad- 
mitted and  fworn  into  fuch  office  or  franchife  j  which  plea 
may  be  pleaded  either  fingly  or  together,  with  fuch  plea  as 
he  might  have  lawfully  pleaded  before  the  paffing  of  the 
,  aft,  or  fuch  feveral  pleas  as  the  court  on  motion  fliall  allow  ^ 
and  if  on  the  trial  of  fuch  information,  the  iffiie  joined  oi|» 
the  plea  aforefaid,  fhall  be  'found  for  the  defendant,  he  fhall 
be  intitled  to  judgment,  and  to  fuch  and  the  like  cofts  as 
he  would,  by  law,  have  been  intitled  to,  if  a  verdift  and 
judgment  had  been  given  for  him  on  the  merits  of  bis 
title." 

But  it  is  provided,  "  that  in  every  fuch  cafe,  the  pro- 
fecutpr  oi  fuch  information  may  reply  to  fuch  plea,  any 

forfeiture, 


432  THE    LAW 

torfeiture^  furrender^  or  avoidance,  by  the  defendant,  of 
fuch  oiEce  or  franchife,  happening  within  fix  years  before 
the  exhibiting  of  fuch  information,  on  which  the  defendant 
may  take  iiTue,  and  {ball  be  indtkd  to  cofts  in  manner 
aforefiud.*'— f.  2. 

To  obtain  leave  to  file  an  information,  the  party  apply- 
ing muft  lay  a  proper  cafe  before  the  court,  verified  by 
affidavit,  on  which  the  court  will  grant  a  rule  on  the  de- 
fendant to  fhew  caufe :  it  was  formerly,  indeed,  fo  much 
the.pra£lice  of  the  court  to  grant  quo  warranto  informa- 
tions, as.of  courfe,  tfa^t  it  was  held  prudent  never  to  (hew 
caufe  againft  the  rule,  for  fear  of  difclofing  the  grounds  on 
which  the  defendant  refted  his  defence. 

•But  fince  thefe  matters  have  come  more  under  confider- 
ation,  it  is  no  longer  a  matter  of  courfe;  and  the  court 
have^  on  feveral  occafions,  declared,  that  it  was  the  in- 
tention of  the  legiilature,  that  they  Ihould  exerpife  a  found 
difef  etion  according  to  the  particular  circumftances  of  the 
refpeflive  cafes  that  came  before  them,  and  ihould  not, 
without  good  reafon,  diflurb  the  quiet  of  any  corpo- 
xatiQn.(tf}. 

•  Where  the  right,  or  AthSt^  on  which  the  right  de- 
pends, is  difputed ;  that  is  a  fufficient  reafon  for  granting 
an  information,  if  the  application  be  made  within  the  pro- 
per time(i).  So,  where  the  right  depends  on  a  point  of 
new  or  doubtful  law  (c). 

The  conduift  of  the  jjarties,  on  whofe  behalf  the  appli- 
cation is  made,  will  weigh  much  with  the  cour^  in  fome 
inftances,  in  granting  or  refufing  an  information* 
'  Where  refidence,  and  paying  fcot  and  lot,  were  re- 
quired by  the  conftitution  of  the  corporation,-  as  ^  pre- 

(a)  Per  Ld.  Mansfield,  x  Term  Jlep.  s,  vid.  4Btir.i954,iofta, 
»i»i.      (b)  Vid,  3  Bur.  14^5.    (0  Vid,  Cowp.  5S,  Doug.  397  (s^*)- 

vious 


OF    CORPORATIONS.  '    43^ 

ous  qiialificatioii,  and  It  was*  admitted^  that  the  defendant 
had  not  that  previous  qualification ;  yet,  as  it  appeared 
that  he  had  ever  fince  his  ele£Hon  refided  and  paid  fcot  and 
lot ;  that  fome  of  the  perfons,  on  whofe  affidavits  the  ap* 
plication  was  made,  had  voted  for  him ;  that  on  fubfe- 
quent  occafions  they  had  voted  with  him;  that  he  had 
afterwards  been  elected  to  different  offices  without  any  ob* 
jedlion  from  thefe  parties^  and  that  many  derivative  rights 
would  be  ai!e£ted  by  a  flaw  in  his  title :  and  as  the  parties 
applying  did  not  fhew  that  any  intereft  of  their  own,  or  to 
any  other  perfon,  depended  on  invalidating  it;  the  court 
refufed  an  information  {a)* 

So,  where  it  appeared,  that  the  objection  to  the  de- 
fendant's title  was,  that  the  ele£^ion  had  not  been  in  con*> 
formity  to  a  bye  law  i  but  that  the  corporation  had  after- 
wards come  to  a  refolution  not  to  enforce  that  bye  law, 
and  that  if  the  franchife  of  any  perfon  ihould  be  impeached 
in  confequence  of  it,  he  ihould  be  defended  at  the  public 
expence  s  and  that  the  relator  had  concurred  in  this  refo- 
lution ;  the  court  difcharged  the  rule  {b). 

But,  where  the  perfon,  on  whofe  affidavit  the  applica- 
tion is  made,  knew  all  the  objections  to  the  defendant's 
election,  at  the  time,  but  had  no  power  of  remonilrating 
againfl  the  proceedings ;  where  he  is  not  in  fadl  the  pro- 
fecutor,  but  merely  a  witnefs,  as  in  the  cafe  of  an  applica- 
tion on  the  affidavit  of  a  town  clerk;  the  application  will 

« 

not  be  refufed,  merely  on  account  of  that  previous  know- 
ledge (c), 

(a)  Vid.  Rex  v.  Dawes,  and  Rex  v.  Marten,  4  Bur.  xiio,  and  the 
cafe  of  Edwin  Wardroper,  4  Bur.  1963,  and  of  Richard  Wardropcr, 
4  Bur.  2024. 
.  (^)  Rexv.Mortlock,  3  Teim  Rep.  300. 

(r)  Vid;  Rex  v.  BinfteJ  etal',  Cowp.  75. 

Vol.  II.  '  Ff  So, 


434  T"^   ^^^ 

So»  uriiere  the  relators  have  concurred  in  the  eledion  of 

the  defendant  without  knowing  of  a  latent  objedion  to  his 

eligibility,  as  that  he  had  not  taken  the  iacrament  within  a 

year  before  his  ele^on  i  their  concurrence  will  be  no  ob- 

Je^on  to  granting  the  information  (a). 

SOf  where  the  application  is  made  on  the  affidavit  of 
feveral  peribns,  all  of  whom  but  one  concurred  in  the 
ele£Hon  of  the  defendant;  if  he  who  did  not  concur  will 
avow  himfelf  the  relator,  and  render  himfelf  refponfiUe  for 
the  cofts,  his  being  joined  with  the  others  who  concurred 
in  the  ele^on,  will  be  no  reafon  for  refiifing  the  informa- 
tion {t). 

It  is  no  reafon  for  refufing  an  information,  that  infor- 
mations formerly  granted,  for  the  iame  caufe,  have  been 
abandoned,  as  that  may  have  been  by  colluiion  (c). 

But  it  is  a  good  reafon,  that  the  profecutor  ftands  ex- 
adly  in  the  (ame  circumftances  with  the  defendant  (d). 

So,  where  the  application  is  founded  on  a  mere  blunder 
at  the  eledion  of  a  perfoo,  under  whom  the  defendant  de- 
rives his  title,  that,  with  length  of  time,  will  be  a  reafon  to 
refofe  the  information  (e). 

In  cafes  where  there  has  been  a  long  acquiefcence,  and 
¥^ere  the  objedion,  if  it  prevailed,  might  tend  to  dif- 
folve  the  corporation,  the  court  may  refufe  the  applica- 
tion (/)  :  but,  though  a  great  number  of  derivative  titles 
may  be  zSeSttd  by  judgment  of  oufter  againft  the  de- 
fendant, yet,  if  it  be  confeiTed  that  elections  may  ftiH 
be  made,  the  court  will  not  refufe  it  on  that  ground 
alone  {g }. 

id)  Vid.  Rex  v.  Smith»  3  Term  Rep.  573. 

(A)  Rex  V.  G.  Symmonsy  4  Teiro  Rep.  213. 

(r)  »TennRep.77o.        {d)  Id.  771.       {e)  1  Term  Rep.  3i  4« 

(/)  Cowp.  59.         {g)  Rex  T.  Bond,  2  Term  Rep.  767. 

Wherk 


OF    CORPORATIONS.  435 

*  Where  the  application  is  made  in  the  names  of  per* 
fons  unconnefted  with  the  corporation,  that  will  in  ge- 
nera) be  a  ftrong  reafon  for  refufihg  it  (a) :  but  where  th« 
objedion  to  the  defendant's  title  is,  that  he  had  not  re^ 
ceived  the  facrament  within  a  year  before  his  election,  an 
information  will  be  granted  on  the  application  c>f  a  ii^ran- 
ger,  becaufe  fuch  an  omiiiion  is  againft  a  general  lawj  which 
affe<Si;s  all  the  corporations  in  the  kingdom  (b). 

Where  an  applicatiion  was  made  for  an  information^ 
twelve  years  after  the  ele£tion,  and  it  was  fworn  hy  the 
relator  that  he  beliived  the  defendant  was  not  regularly 
fworn  into  office;  but  it  was  (hewn -on  the  other  (ide,  that 
by  an  entry  in  the  corporation  books,  it  appeared  he  was 
regularly  fworn,  the  court  refufed  the  application  (r). 

Where  the  affidavit  of  the  relator  omifs  to  ftate  a 
material  fa6l,  as  where  it  omits  to  ftate  the  mode  of 
election ;  but  that  fad  is  afterwards  ftated  in  the  defen- 
dant's affidavit,  the  court  may  ufe  the  latter  in  fupport  of 
the  application  [d)* 

It  does  not  feem  to  be  a  reafon  for  refufing  an  informa- 
tion,  that  the  objection  to  the  defendant's  title  arifes  from 
a  defedt  in  the  title  of  fome  other  perfon  through  whom 
he  claims,  provided  the  application  be  made  within  the 
proper  time  (f).  It  is  admitted,  that  where  judgment  of 
cii/ier  has  been  given  againft  a  perfon  through  whom  a 
title  is  derived,  that  may  be  a  reafon  for  granting,  an  in- 
formation to  impeach  the  derivative  title  (/) :   it  is  alfo 

(«)  Vid.  I  Term  Rep.  23. 

{b)  Vid.  Rex  v.  Brown,  3  Term  Rep.  574  n. 

{c)  Rexv.  John  Newling,  3  Term  Rep.  3 lo*    • 

{d)  Vid.  Rex  v.  Mein,  3  Term  Rep.  596. 

(0  Vid.  8  Mod.  216. 

(/)  Vid.  Str.  1109.  Aiidr.  3S9.    5Bur.  Rep«26oz.    Cowp.  500. 

F  f  a  admitted 


436  THE    LAW 

admitted,  that  the  title  of  a  defendant  to  an  informatioit 
may  be  impeached  by  an  iiTue  introduced  on  the  record^ 
reipeAing  the  title  of  the  perfon  under  vrhom  he  claims  {a)y 
though  the  latter  has  not  been  oufted  on  an  information 
filed  againft  bsm.    It  may,  or  it  may  not,  be  poffible  to 
impeach  the  original  right  on  which  the  derivative  title 
depends,  by  an  information  filed  againft  the  perfon  who 
claimed  to  exercife  that  original  right.    Whatever  may  be 
the  cafe,  uriierc  that  may  be  done,  but  in  hSt  has  not  been 
done,  it  has  been  lately  decided,  that  where  it  cannot  be 
done,  the  original  right  may  be  impeached  in  an  informa- 
tion againft  the  perfon  whofe  derivative  tide  depends  upon 
it.— By  the  conftitution  of  the  borough  of  Foweyin  Corn- 
wall, the  right  of  voting  in  the  eledion  of  Portreeve,  be- 
longs exclufively  to  fuch  perfons  as  are  duly  admitted  the 
Prince  of  Wales's  tenants  on  th^  court  rolls  of  the  manor 
and  borough  of  Fowey,  in  right  of  the  freehold  eftates 
within  the  borough,  and  to  fuch  inhabitants  as  pay  fcot  and 
lot.    At  the  ele£tion  of  a  Portreeve,  feveral  perfons  had 
voted  as  fireehold  tenants,  who,  it  was  alleged,  had  not 
been  properly  admitted,  and  the  validity  of  the  election 
depended  on  the  right  of  thofe  perfons  to  vote.    In  anfwer 
to  a  rule  for  an  information  againft  the  perfon  eleded,  it 
wds  ftrongly  urged,  that  the  right  of  the  eledors  cou)4 
not  be  attacked  in  a  proceeding  inftituted  againft  the 
defied.    But  Lord  Kenyon,  who  delivered  the  opinion  of 
the  court,  obferved,  that  this  rule  could  not  be  applied 
to  the  prefent  cafe.     It  was  plain  that  an  information 
would  not  lie  againft  thefe  perfons  for  exercifing  a  right 
incidental  to  their  freehold.    There  was,  therefore,  an  ab- 
folute  neceffity  of  difcuffing  their  right  in  a  proceeding 

(<7}  Ibid. 

againft 


OP    CORPORATIONS.  437 

&gatnft  the  perfon  ele£ted,  as  there  was  no  other  mode  by 
which  It  could  be  impeached  (a). 

But,  where  the  perfon  on  whofe  right  the  derivative 
title  depends,  has  enjoyed  his  franchife  fo  long  diat  the 
court  would  refufe  to  grant  an  information  to  impeach  the 
latter  dire^Uy,  they  will  not  permit  it  to  be  impeached  in- 
dire<^y  by  an  information  againft  the  perfon  claiming  the 
derivative  title  (A), 

So,  itfeems,  they  will  not  grant  an  information  againft 
the  perfon  claiming  the  derivative  title,  after  the  death  of 
the  perfon  on  the  validity  of  whofe  right  it  depends  (c). 

Wh£R£  the  application  for  an  information  in  the  nature 
of  quo  warranto  appears  frivdous  and  vexatious,  the  rule 
will  be  diicharged  with  cofts  {4)* 

It  feems,  that  the  court  will  not  grant  a  rule  for  fuch 
an  information  on  the  laft  day  of  term  (e)» 

Whei^E  the  perfon  againft  whom  application  ig 
made  for  a  quo  warranto  information,  fuffers  the  rule  to 
be  made  abfolute  without  ihewing  caufe ;  or  on  the  in- 
formati^on  being  granted,  fufFers  judgment  to  go  by  default, 
the  court  will  permit  other  corporators,  whofe  title  may 
be  afFeiEled  by  judgment  of  oufter  being  pronounced  againft 
him,  to  defend  his  tide,  on  their  undertaking  to  do  fo  at 
their  own  expence,  and  indemnifying  him  againft  all 
cofts  (/). 

That  feveral  different  franchifes  claimed  hytiiefame 
perfon,  may  be  the  fubjeft  of  one  information,  appears 

{a)  Rex  V.  Mein,  3  Term  Rep.  596. 

(b)  Vid.  Rex  v.  Stephens,  1  Bur.  4.33.  Rex  v.  G.  Peacock,  4 
Term  Rep.  684,  (r )  Vid.  Rex  v.  Spearing,  1  Term  Rep.,  4,  q, 

(d)  Vid.  a  Str.  1039.    »  Bur.  780.    3  Term  Rep.  301. 

(e)  Vid.  Rex  v.  Davies,  Sayer,  041. 

(/')  Vid.  4  Bur.  2523.    3  Term  Rep.  310. 

F  f  3  from 


438  THE     LAW 

from  the  authorities  cited  in  a  former  part  of  this  fec- 
tion  (tf),  and  from  the  fevcral  books  of  entries  (*}•  The 
ftatute  of  Anne  gives  the  court  authority,  in  their  difcre- 
tion,  to  grant  one  information  to  try  the  rights  of  feveral 
perfotts  [c) ;  and  an  Iriih  ftatute  (d)  gives  the  fame  autho- 
rity to  the  court  of  King's  Bench  Ir  Ireland. 

In  an  information  at  common  law,  there  ought  to  be  no 
relator ;  yet  if  a  relator  be  mentioned,  it  is  only  furplufage, 
and  may  be  rejected  {e). 

Though  the  information  cannot  be  filed  without  leave 
of  the  court,  yet  that  leave  is  never  ftated  on  the  re« 
cord  If). 

The  procefs  ufually  ifllied  to  bring  the  defendant  into 
court  is  a  writ  of  fubpcena,  and  if  that  be  difobeyed,  an 
attachment :  but  if  the  defendant  cannot  be  ferved  with 
the  fubpcena,  it  is  fiiidi  the  procefs  is  venire  facias  and 
diftringas  {g). 

In  the  cafe  of  the  mayor  of  Hedon,  Lord  Chief  Juftice 
Lee  (aid,  '^  there  never  was  any  procefs  to  outlawry  on  an 
information  in  nature  of  quo  warranto,  this  not  being  like 
a  quo  warranto  by  original  writ,  which  was  in  ufe  before 
this  manner  of  proceeding"  {h).  His  lordfhip  clearly 
means  to  contraft  the  writ  of  quo  warranto,  with  an  in- 
formation in  the  nature  of  it,  under  this  ftatute  of  Anne ; 
taking  it  for  granted  that  procefs  of  outlawry  lay  in  the 
former,  and  denying  that  it  lies  in  the  latter :  but  what- 
ever may  be  the  cafe  with  the  information,  it  is  moft  pro- 
bable that  procefs  of  outlawry  did  not  lie  on  the  original 

(«)  Vid.  p.  410.  {b)  Vid.  Co.  Ent.  527,  &c.    Cowp.  499- 

(f)  Vid.  p.  413. 

(^)  19  G.  2,  c.  11,    Vid.  Cowp.  494,  500.  Sayer,  245.    1  Bur.  573, 

(^)  Vid.  Rex  v.  Williams,  1  Bur.  402, 408.    Bui.  N.  P.  2H. 

(/)  Cowp.  501.  {g)  I  Sid.  86. 

(ij^   ^'fix  V.  mayor  of  HcdoB,  i  Will*.  »45' 

writ. 


OF    CORPORATIONS,  439 

writ.  That  procefs  only  lies  in  criminal  cafes,  and  in  pir- 
fond  anions  ;  but  the  writ  of  quo  warranto  was  a  writ  of 
right  rcfembUng  more  a  r*al  than  a  perfonal  a6tion.  The 
information  was  at  firft  confidered  as  a  crimnaly  though  it 
is  nbw  confidered  as  a  «V// proceeding  (^),  and  certainly 
partakes  more  of  the  nature  of  a  perfonal  than  of  a  real 
a£lion :  if,  therefore,  there  be  any  diftindion  between  the 
writ  and  the  information,  with  refpedl  to  procefs  of  out- 
lawry, I  fhould  rather  apprehend  that  it  lies  in  the  latter, 
but  did  not  lie  in  the  former.  But  as  it  is  not  probable 
that  any  perfon  who  had  fhewn  caufe  againft  a  rule  for  an 
information,  would  refufe  to  appear  to  it  when  granted, 
I  fuppofe  this  queftion  was  never  diredUy  determined  (^)* 

Though  the  fiatute  of  9  Queen  Anne  extends  the 
ftatute  for  the  amendment  of  the  law  to  writs  of  manda- 
mus, and  informations  in  the  nature  of  quo  warranto^ 
"for  any  of  the  matters  in  the  former  a£l  mentioned:'* 
yet  it  does  not  enable  the  defendant  to  plead  more  than 
one  plea,  even  with  the  leave  of  the  court  (^).  But  where 
he  is  charged  with  the  ufurpation  of  feveral  offices,  he  may 
plead  diftindt  pleas  to  the  feveral  charges  {a). 

Th£  defendant  may  plead  in  abatement,  but  the  plea 
mud  have  an  affidavit  annexed  to  it  (f). 

But  it  feems,  that  he  cannot  plead  a  plea  of  mifnomer 
in  his  addition;  for  it  is  faid  that  the  ftatute  of  additions 
does  not  extend  to  quo  warranto  informations :  but  as  this 
obfervation  is  founded  on  an  opinion  that  procefs  of  out- 

{a)  Rex  V.  Francis,  a  Term  Rep.  484. 
{b)  Vid.  p.  405. 

(r)  Vid.  Rex.  V.  Newland,  Saycr,  96.    Vid.  4  Bun  a  146. 

{d)  Vid.  p.  410. 

(0  Rex  V.  Jones,  2  Str.  1161. 

F  f  4  lawry 


440  THE     t  A  W 

lawry  does  not  lie  on  fucb  informations,  it  is  (ubje<9  to  the 
lame  doubt  as  that  opinion  (a). 

The  plea  in  bar  muft  fet  out  the  defendant's  title  at 
length,  and  conclude^  with  a  general  traverfe,  *^  without 
this,  that  he  ufurped,  &c."  and  ifilie  ihould  not  be  taken 
on  the  part  of  the  crown,  on  the  general  traverfe  ;  but  the 
replication  (hould  be  to  the  fpecial  matter,  that  the  de^ 
fendant  may  know  how  to  apply  his  defence  {t). 

Where  feveral  things  are  neceflary  to  conftitute  a  com-r 
plete  tide  in  the  defendant,  the  crown  may  take  ifllie  on 
each,  and  if  any  one  of  the  iflues  on  a  fa6l  material  to  the 
title  be  found  againft  the  defendant,  judgment  of  oufter 
fhall  be  given  againft  him.— Thus,  where  an  information 
in  the  nature  of  quo  warranto  was  exhibited  againft  one 
Pender,  to  (hew  by  what  authority  he  exercifed  the  office 
of  mayor  of  Penryn,  and  two  iflues  were  joined  thereon ; 
one,  whether  he  was  duly  ele£led,  and  the  other,  whether 
he  was  duly  fworn ;  die  firft  ifiiie  was  found  for  the  de- 
fendant, and  the  facond  for  the  crown  ^  judgment  of  oufter 
was  given ;  becaufe,  as  againft  the  crown,  want  of  being 
fworn  was  as  much  as  want  of  an  elefkion ;  and  to  be 
c?efted,  and  to  be  fworn,  being  both  neceflary  to  conftitute 
the  tide  to  the  office,  the  jury  finding  that  he  was  not 
fworn,  had  found  in  effe£l:,  that  he  had  no  tide  (c).— On 
a  writ  of  error  on  this  judgment  in  the  Houfe  of  Lords,  it 
was  affirmed  (d). 

The  authority  of  this  cafe  was  recognized  in  a  fubfe- 
quent  one,  where  the  defendant,  in  his  plea,  fet  forth  the 

(a)  Vid.  fupra,  Rex  v.  mayor  of  Hedon,  i  Wilf.  »44»  P-  438. 

(b)  Rex  y.  Blagden,  Gtlb.  Rep.  145. 
(r)  Rex  V.  Hcarle,  i  Str..  582, 615,  627. 
(^)'  2  Ld.  Raym.  1447. 

fonflitutioil 


OF    CORPORATIONS.  44I 

conftitution  of  the  borough,  and  alleged  he  was  chofen 
according  to  that  conftitution,  and  that  he  was  fworn  and 
admitted  into  the  office :  to  this  plea  there  was  a  replica- 
don>  on  which  feveral  iflues  were  joined,  the  fourth  of 
which  was  that  the  defendant  was  not  fworn  nor  admitted 
into  the  office,  as  in  his  plea  he  had  alleged.  On  the  trial, 
the  defendant  was  unable  to  prove  his  having  been  fworn 
and  admitted,  on  account  of  an  irregularity  of  the  ftamp- 
ing  of  the  inftrument,  which  he  produced  for  that  purpofe. 
This  ifliie,  therefore,  by  the  direction  of  the  court,  was 
found  for  the  crown.  The  court  then  acquainted  the 
counfel  for  the  defendant,  that  if  they  infifted  on  having  a 
.verdidt  on  the  other  iflues,  the  trial  ipuft  proceed,  and  the 
evidence  be  heard  on  both  fides,  and  then  it  mufl  be  left 
to  the  confideration  of  the  jury,  whether  they  would  find 
for  the  King  or  for  the  defendant  as  to  thpfe  iffues :  but 
diey  at  the  fame  time  reminded  them,  that  though  a  ver^ 
di£t  on  thofe  ifTues  ihould  be  found  for  the  defendant,  yejt 
judgment  of  pu/ier  muf):,  according  to  the  former  cale,  be 
given  againfl  him  {a). 

Where  the  defendant  fets  forth  a  bad  title  to  the  office, 
and.confefIes  the  ufer,  that  amounts  to  a  confeffion  of  the 
ufurpation,  and  if  an  immaterial  ifTue  is  joined,^ and  a  ver^ 
did  found  on  which  the  court  cannot  give  judgment,  yet 
they  will  not  grant  a  repleader,  but  proceed  to  give  judg- 
ment on  the  plea :  if  a  repleader  were  granted,  the  de- 
fendant could  not  mend  his  cafe ;  the  plea  would  ftand, 
^nd  after  the  forn^ality  of  a  demurrer,  judgment  mufl  be 
given  on  the  goodnefs  or  badnefs  of  the  plea ;  and  if  the 
jliftification  is  fuch,  in  point  of  matter  and  fubflance,  as 

{d)  Rexv.  Robt.  Reek8>  2  Ld.  R^ym.  1445.  Vid.  etiam  Rex  v. 
^^tbam»  3  pur.  14^5* 

cannot, 


^2  THE      LAW 

cannot,  if  put  into  any  form  of  words,  be  a  good  defence 
to  die  defcndaiit,  it  is  to  no  purpofe  to  grant  a  repleader  (a). 
But  Inhere  the  defendant,  in  his  ple^  confeiies  an  uiur- 
pation  durutg  part  of  the  time  laid  in  the  information,  but 
infifts  on  an  eiedton  afterwards  under  which  he  continued 
to  hold  the  office,  judgment  of  wJUry  as  to  the  time  con-- 
fefled,  ought  not  to  be  given  againft  him,  but  only  a  judg- 
ment  of  ^capiatur  pro  fine,"  as  a  punifhment  for  his 
ufur(>ation :    for  if  judgment  of  wfter  were  entered,    it 
would  follow,  that,  when  a  pedbn  has  once  exercifed  an 
office  without  autaority,  he .  becomes,  fo  long  as  he  does 
fo,  incapable  of  being  rightfully  eleded.     And  if,  in  fuch 
a  cafe,  judgment  of  oufter  be  a£tuaUj  entered,  die  court, 
on  application  for  that  purpofe,  will  order  the  whole  to  be 
expunged,  but  that  part  which  relates  to  the  fine  [b). 

Where  one  material  iflue  is  found  for  the  crown,  the 
profecutor  is  intitled  to  cofls  on  all  the  iflfues,  whatever 
number  may  be  found  for  the  defendant  (^ ]. 

If  on  an  information  againft  the  defendant  for  exer- 
cifing  an  office  in  a  corporation,  he  make  tide  as  being 
eledled  under  the  mayoralty  of  a  particular  perfon ;  on 
iflue  joined,  whether  that  perfon  was  mayor  or  not,  a  re- 
cord of  judgment  of  oufter  againft  the  latter  may  be  read 
in  evidence,  to  fhew  that  he  was  not  mayor :  but  it  \s 
only  conclufive,  if  it  be  not  (hewn  that  the  judgment  was 
obtained  by  fraud  or  collufion  (d). 

And,  if  the  perfon,  under  whom  the  defendant  claims, 
be  dead  at  the  time  when  the  ifliie, "  whether  he  was  mayor 

(«)  Rex  V.  Philips,  i  Str.  394,  397,  cited  1  Bur.  302,  305. 

(6)  Rex  V.  Bid\i!e  and  Taylor,  2  Ld.  RayiD.  952. 

(f)  Rexv.  Downes,  1  Terra  Rep.  453. 

(J)  Rex  V.  Hebden,  a  Str.  1109.    Andr.  389,    Rex  r.  Grimes, 

5  Bur.  259S)  2601. 

or 


OF    CORPORATIONS.  443 

or  not,*^  is  tried,  die  only  evidence  that  will  be  admitted^ 
will  be  to  prove  whether  he  was  mayor  or  not  in  point  o£ 
faa. 

In  the  cafe  of  die  King  afnd  Spearing,  tried  at  Win- 
chefter  aiEzes  before  Mr.  Juftice  B^ackfl^one  in  1771,  it 
appeared  that  the  defendant  had  been  fworn  into  office 
before  the  Duke  of  Bolton,  as  mayor  of  Winchefter.— 
The  record,  among  other  iflues,  contained  one,  that  the 
Duke  of  Bolton  was  not  mayor,  which  depended  on  his 
having  been  an  inhabitant  at  the  time  he  had  been  chofen. 
The  duke  being  dead,  the  judge  would  not  fuffer  the 
parties  to  go  into  evidence  to  prove  him  not  an  inhabitant 
at  the  time  of  his  dedion ;  but  confined  them  to  the 
proof  of  the  f^£iy  whether  he  was  a£lually  mayor  or 
not,  which  was  fhewn  by  the  entry  in  the  corporation 
books  (a). 

Where  the  perfons,  on  wfaoie  right  to  vote  the  vsdi- 
dity  of  the  defendant's  tide  depends,  were  at  the  time  of 
his  election  in  the  a(9ual  pofleffion  of  the  franchtfe  in 
virtue  of  which  they  voted ;  at  the  trial,  no  inquiry  can 
be  made  into  their  right,  unlefs  an  iiTue  has  been  taken  upoa 
it(^). 

And  by  ftatute  32  G.  3,  c.  58,  f.  3,  it  is  ena£ted,  that 
if  any  perfon,  againft  whom  an  information  in  the  nature 
of  quo  warranto  (halt  be  exhibited,  fhall  derive  title,  un«- 
der  an  ele£tion,  nomination,  fwearing  into  office,  or  ad- 
miffion  of  any  other  perfon  or  perfons,  the  title  of  the 
defendant  fliall  not  be  defeated  or  afFedted  by  rcafon  of  any 
defed  in  the  tide  of  fuch  perfon  or  perfons  fo  electing,  no- 
minating, fwearing  into  office,  or  admitting,  in  cafe  fuch 
perfon  or  perfons,  under  whom  title  fhall  be  dej^ived,  was 

(a)  Rex  V.  Spearing,  i  Term  Rep.  4,  D« 
{b)  Cowp.  503,  507, 

or 


1 
I 


I 


444  ^'^^    LAW 

or  were  in  exerctie  di  fa&9  of  the  fruchife  or  office^  in 
Ytitue  of  wbtch  he  or  they  fo  dcded,  nominated,  fwore  in, 
or  admitted,  at  a  period  fix  years  at  leaft,  prerious  to  die 
time  of  filing  fuch  information,  unkfs  his  or  their  title  flial] 
have  been  queftioned  by  a  legal  proceeding,  carried  on 
with  effea"  {a). 

This  prorifion  muft  be  confidered  as  a^plyiqg  only  to 
cafes  where  ijfue  is  taken  on  the  tide  of  the  perfon  through 
whom  the  defendant  claims;  for,  as  has  juft  been  ieen,  na 
nqutry  can  be  made  into  fuch  tide,  where  no  iflue  has 
been  taken  upon  it  (h). 

Where  it  is  alleged,  that,  by  the  conftitution  ctf  a  cor- 
poration by  prefcriptton,  no  perfon  fliall  be  a  common 
councilman  who  does  not  inhabit  the  borough,  and  alfo 
hold  a  burgage  tenure,  a  perfon  who  is  bodi  an  inhabitant^ 
and  holds  a  burgage  tenure,  cannot  be  admitted  as  a  wit- 
neis  to  prove  this  conftitution,  becaufe  be  is  to  prove  a 
right  in  bimfelf,  and  fuch  as  have  his  qualifications,  ex* 
clufively  of  all  others:  but  one  who  is  only  an  inhabitant^ 
and  has  no  burgage  tenure,  may  be  admitted,  becaufe  be  is 
to  prove  no  exdufive  right  in  himfelf  (r). 

And  a  member  of  a  corporation,  who  has  formerly  aded 
under  the  right  clauned,  may  be  a  witnefe  to  prove  th^ 
ufage. 

Ok  a  motion  for  a  new  trial  on  behalf  of  die  defendant 
in  an  informadon  in  the  nature  of  quo  warranto  for  the 
office  of  mayor,  the  queftioq  on  which  his  tide  turned  was, 
"whether  the  former  mayor  had  a  right  to  name. two 
elifors  to  return  a  jury,  if  the  town,  clerk,  who  might  no- 

(ij)  St.  31  G.  3,  c.  58,  f.  3. 

{b)  Vid.  ante^  p.  443,  and  Rex  v.  Mein,  3  Term  Rep.  596.  4  Term 

Rep.  4S0. 
(r)  Stevenibn  v*  mayor  of  Appleby,  &c.    &  Ld.  Raym*  YS53* 

minatQ 


OF    CORPORATIONS.  445 

minate  one,  was  abfent,  or  refufed  ?"  The  fecond  clifor 
nominated  by  the  mayor,  was  called  as  a  witnefs  to  prove 
the  cuftom ;  and  it  was  objefled  to  his  competency,  tnat 
he  having  afbd  under  fuch  a  nomination,  was  liable  to  an 
{information,  and  therefore  could  not  be  examined.  The 
judge,  who  tried  the  caufe,  rejedted  him.  The  foundation 
of  the  motion  for  a  new  trial,  was,  that  the  objection  went 
only  to  his  credit.  The  court  were  of  that  opinion,  as  he 
was  but  an  oiEcer  for  the  day,  whofe  power  had  lohg'fince 
been  at  an  end.  They  obferved,  that  it  was  but  a  bare 
authority,  and  not  an  intereft;  and  that  nothing  was 
more  common  than  to  examine  former  mayors  as  to  the 
right  (a). 

Evidence  of  2x1  order  of  re/forati&n  of  sl  burgefs,  to- 
gether with  proof  of  his  having  afted  in  that  capacity,  is 
fufficient  to  fliew  that  he  was  a  burgefs  in  point  of  fa(St, 
without  proof  that  he  was  a^ually  admitted  (b). 

It  was  formerly  a  fubje<^  of  much  difcuflion,  whether  a 
new  trial  could  be  granted  in  a  quo  warranto  information » 
when  the  verdift  was  in  favour  of  the  defendant  (r).  This 
depended  chiefly  on  the  queftion,  whether  fuch  an  infor- 
mation was  a  criminal  profecutjon:  but  fince  it  has  been 
held,  that  it  is  merely  a  civil  proceeding,  there  is  no  doubt 
but  that  a  new  trial  may  be  granted,  where  a  verdi£t  has 
been  given  in  favour  of  the  defendant,  as  well  as  where  it 
has  been  given  in  favour  of  the  crown  (d)* 

(a)  Rex  V.  Robin s,  2  Str.  1069.  (^)  Cowp.  502. 

(f)  Vid.  Rex  v.  Bennet,  Str.  101  •  Rex  v.  corporation  of  Breck- 
nock, 8  Mod.  201.  {d)  Vid.  Rex  v.  Francis,  2  Term  Rep.  484. 


CHAP- 


«.. 


446  THB    lAW 


CHAP.     V. 

OF  THE   DISSOLUTION  OF   A    CORPORATIOK,    AND  IT« 

EFFECTS. 

That  there  is  nothing  in  the  nature  of  a  corporation 
which  renders  it  incapable  of  diflbludon,  is  manifeft  from 
the  definition  and  defcription  which  have  been  given  of  it 
in  the  introdu^on  to  this  work(tf):  that  it  may  be  dif- 
folved,  is  an  idea  ^miliar  to  the  Englifli  law ;  and  that  this 
idea  was  not  new  in-the  reign  of  Edward  the  fecond,  ap- 
pears from  the  ftatute  di  terris  templariorumy  paiTed  in  the 
feventeenth  year  of  that  King. 

The  order  of  Templars  was  ereSed  by  Pope  Honorius, 
in  the  21  H.  I  {b) ;  the  purpofe  of  their  incorporation  was, 
that  they  might  guide  chriftian  pilgrims  to  the  Holy  Land, 
of  which  the  Saracens  and  Turks  had  taken  pofleffion : 
the  members  of  the  order  never  went  there,  but  difperfed 
themfelves  in  different  parts  of  chriftendom :  the  end  of 
the  inftitution,  therefcre,  not  having  been  anfwered,  the 
order  was  diffolved  by  Clement  the  fifth,  in  the  4  Ed,  2  (r ), 
thirteen  years  before  the  ftatute  above  mentioned.  The 
ftatute  recites  the  dlflblution  of  the  corporation,  and  the 
ia£^  that  the  King  and  feveral  lords  had  entered  on  all 
their  lands  and  efcheats.  The  judgment  of  the  parliament 
was,  that  they  were  well  diffolved,  and,  therefore,  that  the 
lords  were  well  intitled  by  efcheat,  as  the  law  ftood ;  and 
by  this  ftatute  the  lands  were  fettled  on  the  hofpitallers  {d). 

(tf)  Vid.  vol.  X,  12—19.      •  W  -^n*  1120.        (0  An.  1311. 
{d)  Vid.  Sawyer's  Ar.  Quo  War.  13. 

That 


I 


I 


OF    CORPORATIONS.  447 

That  a  corporation  may  be  diffolved  by  a£k  of  parlia- 
tnent,  is  a  confcquence  of  the  omnipotence  of  that  body 
in  all  matters  of  political  inftitution.  But  the  Kingvthough 
by  his  prerogative  he  can  cnate  2,  corporation,  cannot  by 
his  prerogative  diffolve  it:  for  it  is  a  principle  of  the  law 
of  England,  that  the  King  may  grant  privileges  and  im- 
munities, but  that  when  once  vefted,  he  cannot,  by  his 
7nere  prerogative,  take  them  away  {a). 

With  refpefk  to  fole  corporations  (b)y  there  is  no  doubt 
but  that  the  politic  capacity  may  be  feparated  from  the  na- 
tural perfon,  by  death,  by  refignation,  or  by  deprivation 
for  fuch  offences  as  by  the  law  are  confidered  a  fufficient 
caufe  of  deprivation:  but  neither  of  thefe  diflblves  or  de- 
ftroys  the  corporate  charafter;  becaufe  the  continuance  of 
the  latter  is  in  the  power  of  another.  Between  the  death, 
deprivation,  or  refignation  of  one  incumbent,  and  the  ap- 
pointment of  another,  the  corporate  capacity  is  mdeed 
fufpended  5  but  immediiately  on  the  appointment  of  a  fuc- 
ceiTor  it  is  revived,  and  exifts  to  the  fame  extent  as  be- 
fore (c). 

With  refpeft  to  corporations  aggregate,  there  are  three 
ways,  befide  an  a6b  of  parliament,  by  which,  it  is  fuppofed, 
they  may  be  diffolved.  i,  A  corporation  aggregate  is  dif- 
folved, when  by  accident  it  is  rendered  incapable  of  con- 
tinuing its  corporate  fucceffion,  2,  It  is  fuppofed  to  be 
diffolved  by  the  furrender  of  its  franchifes  into  the  hands  of 
the  King :  as  it  is  3,  by  forfeiture  of  its  charter,  through 
negligence  or  abufe  of  its  franchifes  (d). 

That  a  corporation  aggregate  is  dilTolved  by  the  death 
of  all  its  members,  is  a  propofltion  fo  plain  that  it  feems 

(a)  Admitted  in  Rex  v.  Amery,  365,  480. 

(b)  Vid.  vol.  I,  19,  20.  (f)  Vid.  Sawyer's  Arg.  21, 15. 
iJ)  Vid.  I  Bl.  Com.  485. 

ludicrous 


44*  THE     LAW 

ludicrous  to  mention  it,  and  yet  an  authority  has  beencitecf 
in'fupport  of  it.  Thus  it  is  gravely  adjudged,  that  if  an 
abbot  or  prior  and  all  the  monks  die,  the  corporation  is 
diflblved,  and  cannot  be  revived  without  a  new  creation  («}• 
So,  if  by  the  death  or  disfranchifement  of  fo  many  of  the 
members,  that  by  the  original  conftitution  of  the  corpo>- 
ration,  the  remaining  members  cannot  continue  the  fue-^ 
cef&on,  the  corporate  activity  is  gone,  and  to  all  purpofes 
of  action,  at  leaft,  the  corporation  itfelf  is  diflblved  :  as,  if 
a  corporation  aggregate  confift  of  a  definite  number,  and 
be  reduced  to  half  that  number,  fo  that  there  cannot  be 
the  concurrence  of  a  majority  of  the  original  corporation' 
it  can  no  longer  continue  the  fucceifion,  and  confequently, 
to  many  purpofes,  is  diflblved  {b)* 

-  But  while  the  furviving  members  have  the  power  of 
continuing  the  fucceflion,  the  corporation  remains.  Thus, 
it  was  held  (^),  that  though  all  the  monks  died,  yet  if  the 
abbot  was  alive,  the  corporation  wau  not  determined,  be- 
caufe  the  abbot  might  profefs  others « 

Wh£R£  a  corporation  confifts  of  feveral  diftindi:  inte- 
gral parts  (d)^  if  one  of  thefe  parts  become  extinft,  whe- 
ther by  the  death  of  the  perfons  of  whom  it  is  compofed, 
or  by  other  means,  the  whole  corporation,  fays  Rolle  {e)j 
is  diflblved :  as  if  a  corporation  confift  of  fo  many  brothers  j 

and  fo  many  flfters,  ^nd  all  the  fifters  die,  the  whole  is  dif-  / 

foIved,and  all  a£ls  done,and  all  grants  made  by  the  brothers 
afterwards  are  void  >  becaufe,  fays  he,  the  brothers  and  fifters  " 

are  integral  parts  of  the  corporation,  and  it  cannot  f^b/t/l 
by  halves.  But  he  adds,  if  the  King  make  a  corporation, 
confifting  of  twelve  men,  to  continue  for  ever  in  fucceflion, 

(a)  20  H.  6,  7.    Bro.  Moitmain.     x  Inft.  i^  b. 

(b)  VId.  vol.  1,  309— jii,  400,  etfeq.        (c)  11  Ed.  4,  4. 
(d)  Vid.  vol.  I,  36,  37.  (e)  1  Roi.  Abr.  514. 

and 


OF    CORPORATIONS.  449 

and  when  one  of  them  dies,  that  the  reft  may  eleft  another 
in  his  place  5  though  three  or  four  of  them  die,  yet  all  adls 
done  by  the  remaining  members  are  valid,  becaufe  the 
members  deceafed  did  not  conftitute  a  diftin6l  integral 
part. 

In  the  famous  cafe  of  the  quo  warranto  againft  the  city 
of  London,  Treby,  the  recorder,  who  argued  for  the  city, 
and  contended  with  all  his  ability,  that  a  corporation  could 
not  be  diflblved  by  the  judgment  of  a  court  of  law,  yet 
admitted  the  authority  of  the  cafe  of  the  brothers  and 
fitters,  and  the  diflblution  of  the  corporation,  by  the  ir- 
remediable lofs  of  an  integral  part  (a). 

Sir  Robert  Sawyer,  in  his  argument  for  the  crown, 
cites  a  cafe  from  the  year  books  in  the  time  of  Edward  4  (^), 
from  whence  he  concludes,  *'  that  where  a  commonalty 
have  power  to  choofe  a  mayor  every  year,  but  never  choofe 
one,  they,  by  their  own  adt,  diflblve  the  corporation"  {c)  i 
on  the  principle,  no  doubt,  that  the  mayor  is  an  integral 
part  of  the  corporation,  which  confequently  cannot  fubfift 
without  him. 

From  this  time  till  the  cafe  of  the  corporation  of 
Bewdley,  which  occurred  in  the  year  1712,  it  ^oes  not 
feem  to  have  been  difputed,  that  the  deftrudlion  of  an  in- 
tegral part  of  a  corporation,  where  the  power  of  renova- 
tion by  the  remaining  parts  had  ceafed,  was  a  diflblution 
of  the  whole. 

By  the  report  of  this  cafe  {d)^  it  appears  that  a  charter 
had  been  granted  to  the  borough  by  James  the  firft,  which 
was  confidered  as  a  valid  charter;  and  another  by  James 

(a)  Treby's  Arg.  Quo  War.  5. 

(h)  21  Ed.  4,  14,  vid.  vol.  1,  312,  327, 

(c)  Sawyer's  Arg.  21. 

(d)  Regina  v.  Ballivos,  Sec.  de  Bewdley,  t  P,  W.  ap;. 

Vol.  II.  G  g  the 


450  THB    LAW 

the  fecond,  which  was  confefledly  void.  By  the  firft  of 
thefe  charters,  both  the  capital  and  common  burgefles  had  a 
right  to  vote  in  the  annual  eleftion  of  the  bailifF,  who  was 
the  chief  officer ;  and  the  bailiff  and  r^7/>iW  burgefles  were 
to  do  all  corporate  a£ls,  and  among  others,  to  choofe  the 
common  burgefles.  After  the  grant  of  the  charter  of  James 
the  fecond,  great  confufion  had  arifen  in  the  borough  be- 
tween two  different  fets  of  corporators,  eleSed  under  the 
two  different  charters.  In  1708  a  new  charter  was  granted 
by  Queen  Anne,  which  was  accepted  by  the  inhabitants, 
but  refufed  by  the  remaining  members  of  the  old  corpora- 
tion. The  bailiff  who  prefided  over  the  corporation  when 
this  new  charter  was  granted,  had  been  elefted  at  a  meet- 
ing at  which  a  bailiff  under  the  void  charter  of  James  the 
fecond  prefided,  after  its  invalidity  had  been  univerfally 
acknowledged :  the  new  and  old  burgefles  had  voted  pro- 
mifcuoufly  at  that  eleftion  ;  but  a  majority  of  the  ^/ibur- 
geffes  had  voted  in  favour  of  the  perfon  who  was  now 
bailiff.  Difputes  arifing  about  the  right  of  fending  mem- 
bers to  parliament,  the  commons  petitioned  the  Queen  to 
take  proper  fl:e\)s  for  repealing  the  new  charter,  on  which 
zfcire facias  VfdiS  brought,  and  feveral  iffues  being  joined, 
a  trial  at  bar  was  had.  It;  appeared,  that  on  the  death  or 
removal  of  any  of  the  capital  burgefles,  the  charter  of 
James  the  firfl  appointed  that  the  rejidue  of  the  capita]  bur- 
geflfes,  or  the  greater  part  of  them,  fliould  choofe  others 
within  fifteen  days  after  the  vacancy  fhould  take  place ; 
that  for  the  lafl  twenty-two  years  no  vacancy  had  been 
filled  up,  and  that,  at  the  time  when  the  charter  of  her 
Majefty  was  granted,  there  was  only  one  capital  burgefs 
in  being,  qualified  under  the  charter  of  James  the  firft.— 
Three  queflions  were  raifed,  of  which  only  the  two  latter 
are  material  to  the  prefent  purpofe.  i,  Whether,  accord- 
ing 


OF     CORPORATIONS.  451 

ing  to  the  charter  of  James  the  firft,  thfe  capital  burgefles 
were  not  to  be  coniiJered  as  extindl,  as  one  only  r^mairted  i 
and  if  foj  then  2,  Whether,  as  by  the  charter  the  cai)ital  bur- 
gcfies  were  an  integral  part  of  the  corporation,  the  latter 
could  (libfift  without  the  former,  or  whether  it  muft  not, 
in  defedt  of  them,  be  diflblved  ?  If  the  capital  burgefles 
were  ftill  to  be  confidered  as  a  fubfifting  body;  or  if  they 
were  not,  yet  if  the  corporation,  notwithllanding  their 
extindlion,  was  not  to  be  confidered  as  diflblved,  the  char- 
ter of  Qi^ieen  Anne  was  void. 

All  the  judges  in  court  (a)  feemed  to  think,  that,  if  the 
•capital  burgefles  were  no  longer  a  fubfi firing  body,  the  legal 
effedl  was  the  diflblution  of  the  corporation ;  but  one  of 
them  (h)  doubted,  whether  under  the  claufe  that  the  re- 
maining burgefles  fliould  ele6t  others  to  fill  up  the  vacancies, 
that  might  not  be  done  by  the  only  .one  who  now  re- 
mained ? — The  judges  wifhed  the  jury  to  find  zfpecial  ver- 
di<3:,  notwithftanding  which  they  found  a  general  verdict: 
againft  the  new  charter.  The  court  afterwards,  by  the 
advice  of  all  the  judges,  granted  a  new  trial ;  from  whence 
it  may  be  concluded  that,  on  confideration  of  all  the  fa6ts 
proved,  they  were  of  opinion  that  the  old  corporation  had 
loft  an  integral  part,  and  that  the  confequence  of  fuch  lofs 
was  the  diflblution  of  the  corporation  (c). 

The  next  cafe  on  this  fubje<Sl  is  that  of  the  corporation 
of  Banbury,  which  occured  in  17 16.  It  was  an  informa- 
tion in  the  nature  of  quo  warranto,  exhibited  againft  Mr. 
Painton,  calling  upon  him  to  ftiew,  by  what  authority  he 
exercifed  the  office  of  recorder  of  Banbury,  when,  the 
corporation  having  omitted  to  elecSlamayor  on  the  charter 

(a)  Parker,  C.  J.  Powell  and  Eyre,  J.         (b)  Powell,  J. 

(f)  Vid.  Mr.  Eaft's  argument  in  Rex  v.  Paimore,  3  Term  Rep. 

120. 

G  g  2  day, 


4^$^  THE      LAW 

day,  that  integral  part  was  gone.  The  court  held  that  the 
defendant,  though  he  had  been  chofen  when  the  corpora- 
tion was  full,  was  not  now  legal  recorder,  becaufe  the  cor- 
poration was  diflblved :  and  Lord  C.  J.  Parker  faid,  ^^  that 
if  a  mayor  was  not  chofen  on  the  day  prefcribed  by  the 
charter,  and  there  was  no  proviiion  for  the  old  mayor's 
continuing  till  a  new  mayor  was  chofen,  the  corporation 
was  diflblved,  and  confequently  could  not  proceed  to  a  new 
ele(3ion;  that  if  there  could  be  no  clcQlonjvitbout  the  old 
mayor,  much  lefs  could  theie  be  one  where  there  was  no 
mayor.  That  this  was  not  a  forfeiture  for  non-uier,  but 
only  a  confequence  in  law :  that  he  had  never  heard  that  a 
corporation  could  zQ,  v/ithout  their  head :  if  they  could, 
they  might  avoid  adtions  at  their  pleafure :  that  this  cor- 
poration was  dead,  and  not  barely  afleep ;  and  that  on  the 
whole  he  was  of  opinion,  it  was  aflually  diflblved,  and 
that,  therefore,  the  offices  exercifed  were  ufurpations  on 
the  crown"  («).— In  confequence  of  this  decifion  a  new 
charter  was  granted^  under  which  the  corporation  now 
exifls. 

The  principle  eflablifhed  in  this  cafe  was  recognized  % 
few  years  after,  in  that  of  Tregony  beforementioned  f  ^),  , 

in  which  the  court  held  that  no  eleflion  could  be  made  but 
on  the  charter-day,  and  that  where  by  their  charter,  the  j 

■ 

corporation  have  no  power  to  choofe  on  any  other  day, 

**  their  corporation  Jhall  be  dijfolved  rather  than  they  fhall  *. 

make  an  ele£lion  on  any  other  day"  {c). 

In  confequence  of  thefe  dccifions,  feveral  boroughs  which 
had  by  accident  or  dellgn  been  prevented  from  choofing  a 
mayor  on  the  charter  day,  applied  to  the  crown  for  new 
charters ;  and  among  others  the  borough  of  Tiverton,  ir^ 

{d)  10  Mod.  346.    Vid.  3  Term  Rep.  221. 

{b)  Vol.  !♦  380,  381.  (0  Vid.  8  Mod.  129. 

the 


OF    CORPORATIONS.  453 

Ihe  year  1724.  The  applicalion  was  referred  to  the  at- 
torney and  folicitor  general  (a)y  who,  in  their  report,  ad- 
verted to  the  cafe  of  Banbury,  as  conclufive  that  the  cor- 
poration was  difToIved,  and  alfo  delivered  it  as  their  clear 
opinion,  that  the  corporation  could  not  be  faid  to  exift  after 
the  lofs  of  an  integral  part,  which  was  made  neceflary  by 
its  conftitution  (b). 

These  decifions  gave  rife  to  the  ftatute  of  the  1 1  G.  i, 
c.  4,  fome  part  of  which  has  been  given  in  a  former  part 
of.  this  work(r).  The  preamble  of  that  ftatute  plainly 
recognizes  the  opinion,  "that  by  omitting  to  choofe  the 
mayor  on  the  charter  day,  the  corporation  was  diflblved," 
and  therefore  provides  a  remedy  for  this  inconvenience  (d). 
It  is  true,  that  Mr.  Juftice  Afton,  in  the  cafe  of  Colchef- 
ter  and  Seaber,  is  reported  to  have  faid,  "  that  the  intent 
of  this  ftatute  was  not  to  confider  fuch  corporations  as  dif* 
folved,  and  to  grant  them  new  powers,  or,  as  it  were,  new 
charters  as  bodies  diflblved  5  but  to  revive  their  a^ivity  and 
put  them  again  in  motion'^  {e) :  but  with  all  the  deference 
that  is  due  to  the  opinion  of  fo  able  a  judge,  it  is  difficult 
to  conclude  from  the  words  of  the  ftatute,  that  the  legifla- 
ture  did  mi  confider  the  corporations  as  diflblved.  They 
make  an  exprefs  provifion  by  the  7tji  feftion,  "  that  no  cor- 
poration fliall  be  deemed  or  adjudged  to  be  diflblved  or  dif- 
abled  from  eledling  a  mayor,  bailiff"  or  bailiff^s,  or  other 
chief  officer  or  officers,  by  reafon  of  any  omiffion  or  de- 
fault which  had  already  happened  in  not  nominating,  eleft-. 
ing,  or  fwearing  any  fuch  chief  officer,  on  the  day  or. 
within  the  time  limited  by  the  charter  or  ufage,  or  by  rea% 

[a)  Sir  Philip  Yorke  and  Sir  Clement  Weaig. 

{b)  3  Tei-m  Rep.  22a.  (f)  Vol.  2,  31,  et  feq, 

(^)  Vid.vol.2,  315.  {e)  3  Bur.  1873. 

G  g  3  fon 


454  ^^^    LAW 

fon  of  the  abfence  of  fuch  chief  officer,  who  ought  to  have 
prefided  at  the  affembly  for  fuch  nomination,  elrdion,  or 
fwearing,  or  by  reafon  of  fuch  election  having  become 
void  as  aforefaid;  but  every  fuch  corporation  fhall  be 
deemed  to  have  been  fubfifting  and  capable  of  clefling  fuch 
officer  to  all  intents  and  purpofes,  notwithftanding  any  fuch 
omiffion,  abfence,  default,  or  avoidance^  or  any  defe£t,  dif-' 
ability,  or  forfeiture  arifing  therefrom."  Had  they  not 
confidercd  the  corporations  as  diflblved,  they  would  pro- 
bably not  have  thought  it  neceffary  to  make  this  provifion : 
and  by  the  next  feftion  they  exprefsly  recognize  that 
.opinion,  by  providing,  "that  nothing  herein  contained 
fhall  extend,  or  be  conftrued  to  extend,  to  invalidate  or 
make  void  any  charter  heretofore  granted  to  arid  accepted 
by  any  city,  borough,  or  town  corporate,  or  any  corpo- 
ration within  the  fame,  or  any  of  them,  or  any  eledlions 
or  afts  had,  made,  or  done  in  purfuance  of  any  fuch  char- 
ter 5  nor  to  make  good  the  ele(3ion  of  any  officer  or  mem- 
ber, or  of  any  perfon  claiming  to  be  an  officer  or  member 
of  any  city,  borough,  or  corporation,  againft  whom  any 
judgment  of  oufter  (hall  have  been  entered  or  given,  in 
any  information  in  the  nature  of  quo  warranto,  or  whofe 
cleftion  (hall  have  been  •ivoided  on  any  writ  of  mandamus 
on  or  before  the  laft  day  of  Michaelmas  term,  in  the  year 
1724." 

This  ftatute  does  not  aflTeft  the  legal  confequences  of 
the  extinftion  of  any  other  integral  part  of  a  corporation, 
or  of  its  reduction  to  fo  fmall  a  number  that  the  facceffion 
according  to  its  original  conftitution  cannot  be  continued^ 
The  fifth  fedion  exprefsly  excludes  the  idea  of  any  inten- 
tion to  make  any  alteration  in  the  common  law  in  thefe 
refpefts :  it  provides,  "  that  no  eledlion,  nor  any  adl  done 

in 


OP     CORPORATIONS.  4^^ 

in  order  theretO)  fhall  be  valid,  unlefs  as  great  a  mrfhber  of 
perfons  having  right  to  be  prefent  at,  and  vote  therein, 
ihali  be  prefent  at  the  aflembly  holden  for  fuch  purpofe,  and 
concur  therein,  as  would  refpeilively  have  been  neceflary 
to  be  prefent,  and  concur  in  fuch  eledtion  or  adt,  in  cafe 
the  fame  had  been  made  or  done  on  the  day,  or  within  the 
time  appointed  by  the  charter  or  ufage"(^?). 

That  this  ftatute  has  not  been  in  general  confidered  as 
making  an  alteration  in  the  common  law  in  any  other  cafe 
than  that  of  the  chief  officer  of  a  corporation,  is  manifeft 
from  the  cafes  cited  in  that  part  of  this  work  which  treats 
**  of  the  concurrence  required  in  corporate  afls"  (h) ;  and 
there  are  other  cafes  not  mentioned  there,  which  not  only 
confirm  this  obfervation,  but  recognize  the  law  as  before 

ftated(0. 
The  town  of  Maidftone  had  been  incorporated  by  a 

charter  of  James  i,  by  the  name  of  Mayor,  Jurats,  and 
Commonalty.  The  mayor  was  to  be  elected  out  of  the 
jurats  by  their  naming  two,  of  whom  the  commonalty 
were  to  choofe  one  :  the  jurats  by  the  mayor,  jurats  and 
commonalty  out  of  the  inhabitants :  the  freemen  by  the 
mayor  and  jurats.  In  1742,  there  being  then  no  mayor  or 
legal  jurat  exiding,  application  was  inade  for  a  new  char- 
ter :  there  were  upwards  of  five  hundred  freemen,  of  whom 
two  hundred  oppofed  the  application.  The  matter  was 
referred  to  Sir  Dudley  Rider  and  Sir  John  Strange,  attor- 
ney and  folicitor  general,  who,  ftating  thefe  fafts  in  their 
report,  delivered  their  opinion,  that  the  corporation  was 
dijfolved^d).  In  confequence  of  this  opinion,  after  much 
litigation,  a  new  charter  was  granted,  u»ider  which  the 
corporation  have  a£led  ever  fmce  [e). 

{a)  Vid.  ante,  p.  33.  {b)  Vid.  vol.  i,  400,  etfeq. 

(f)  Vid.  p.  448.  {(i)  3  Term  Rep.  225. 

{e)  Vid.  3  Bur.  1827,    4  Bur.  2204,    Vid.  vol.  2,  29,  30,  "113. 

G  g  4  It 


456  THE     tAW 

It  is  true,  that  in  the  cafe  of  Colchefter  and  S€si}er{a)j 
fome  expreffions  are  ufed  by  the  judges,  which  feem  to  im* 
ply  a  doubt  about  the  propriety  of  this  opinion,  ^^  that  a 
corporation  is  diflblved  by  the  deftru£tion  of  one  of  its  in-> 
tegral  parts,'*  and  thefe  exprelSons  have  been  cited  as  an 
authority  to  impeach  it:  but  they  have  been  decided  to  be 
either  ill-founded,  or  inapplicable  to  this  queftion.  The  cafe 
occurred  in  the  year  1766.  It  appeared  that  in  1740,  there 
were  judgments  of  oufter  againft  all  the  perfons  then  claim- 
ing in  b£t  to  be  mayor  and  aldermen  of  the  corporation  : 
that  thofe  perfons  were  all  dead  before  the  year  1763 :  that 
from  1740  to  1763,  no  perfon,  in  fa£t,  took  upon  himfelf 
to  be,  or  claimed  to  be  mayor  or  aldermen  $  and  that  in 
1763  the  charter,  under  which  they  a6led  when  this  cafe 
occurred,  was  granted  and  accepted.  The  queftion  im- 
mediately before  the  court  was,  whether  the  prefent  corpo- 
ration could  maintain  an  a£lion  on  a  bond  given  to  the 
corporation  in  the  year  1735  ?  This  was  confidered  as  de- 
pending on  another  queftion,  whether  the  ^/^  corporation 
was  dtffblved  at  the  time  of  the  acceptance  of  the  new 
charter  in  1763. 

Lord  Mansfield  exprefled  himfelf  to  this  tStSt :  "  Many 
corporations,  for  want  of  legal  magiftrates,  have  loft  their 
aSivity  and  obtained  new  charters.  Maidftone,  Radnor, 
Carmarthen,  and  many  more  are  in  the  fame  fituation  with 
Colchefter.  And  yet  it  has  never  been  difputed,  but  that 
the  new  charters  revivi  and  give  aSiivity  to  the  old 
corporation.— —Where  the  queftion  has  arifen  on  any 
remarkable  metamorphofis,  it  has  always  been  determined, 
that  they  remain  the  fame,  as  to  debts  and  rights'.  It  now 
comes  on,  as  a  queftion,  whether  the  old  corporation  ex- 
ifts,  after  this  judgment  of  oufter  againft  the  mayor  and  all 

{a)  3  Eur.  1 866, 

the 


■ 


OF    CORPORATIONS*  4^7 

die  aldermen,  and  after  the  new  charter  ?  and  it  is  argued, 
that  this  new  corporation  is  totally  difUnB  from  the  old 
one.  But  there  is  no  authority,  no  di^um  for  it:  and  the 
confequences  are  obvious,  and  would  be  ntoft  inconvenient. 
Without  an  exprefs  authority  fo  ftrong  as  not  to  be  gotten 
over,  we  ought  not  to  determine  a  cafe  fo  much  againft 
reafon,  as  that  the  parliament  fhould  be  obliged  to  interfere 
to  fet  it  right. 

**  The  corporation  is  not  dijfolved  by  the  judgments  of 
oufter  and  fubfequent  deaths  of  the  mayor  and  aldermen, 
though  they  are  without  their  magiftracy:  Their  conftitU" 
tion  is  not  deftroyed  and  gone.  Their  former  rights  re- 
m^n.  Would  not  a  freeman  of  Colchefter  fHU  continue 
to  have  a  right  of  common?  or  to  vote  for  members  to 

parliament? Notwithftanding  this  judgment  of  oufler, 

a  right  may  remain,  fo  as  to  be  capable  of  being  again 
raifed  and  revived.  The  corporation  cannot  aSi  without 
legal  magiftrates :  but  their  rights  may  be  revived^  and  put 
in  a^ion  again,  by  a  new  charter  from  the  crown,  giving 
them  legal  magiftrates.  I  am  clear  upon  principles  of 
law,  that  the  old  corporation  was  not  abfolutely  diilblved 
and  annihilated,  though  they  had  loft  their  magiftrates; 
and  that  by  virtue  of  the  new  charter  they  arey&  revived  as 
to  be  entitled  to  the  credit Sy  and  liable  to  the  debts  of  the  old 
corporation.  Where  there  is  a  judgment  againft  the  r^r- 
poration  itfelf^c  cafe  may  be  of  a  different  confideration/* 

Mr.  J.  WiLMOT  expreffed  himfelf  thus;—"  Where- 
ev^r  a  corporation  accepts  a  new  charter,  it  remains^  to 
every  intent  and  purpofe,  as  it  did  before,  though  the 
name   be    altered.  'Then   the   law  being   clear, 

that  a  new  charter  does  not  deftroy  the  rights  of  the  old 
corporation ;  the  queftion  is,  whether  this  corporation  was 
diflblved  by  the  judgment  of  oufter  againft  individuals  ?— » 

dearly 


^58  THE    LAW 

clearly  it  is  not.  The  difference  is  between  a  judgment 
againft  the  cofporation  itfelf,  for  that  may  be  a  forfeiture, 
and  a  judgment  of  oufter  againft  individuals. 
Before  tiie  a£l  of  1 1  G.  i,  c.  4,  which  took  its  rife  from  a 
cale  of  the  corporation  of  Banbur^',  a  corporation  who  had 
flipped  the  time  of  ele<Shon  of  their  chief  officer  could  not 
proceed  by  their  own  power :  but  the  King  might  have 
given  them  the  power,  by  reviving  and  reanimating  them. 
The  corporation  only  lay  dormant  and  quiefcent^  till  revived 
and  rejiored  to  their  a«flivity/' 

Mr.  J.  Yates  concurred  in  the  opinion,  '*  that  the 
corporation  could  not  be  diffolved  by  a  judgment  againft 
individuals^^* — and  Mr.  J.  Afton  cxprefled  himfelf  as  be- 
fore mentioned  with  refpecl  to  the  ftatute  1 1  G.  i,c.  4  {a)* 

Whatever  doubts  this  cafe  may  have  raifed  on  the 
fubjedl,  it  has  been  fmce  finally  fettled  m  the  cafe  of  the 
King  and  Pafmore,  **  that  when  an  integral  part  of  a  cor- 
poration is  gone,  and  the  corporation  has  no  power  of  re- 
ftoring  it,  or  of  doing  any  corporate  act,  the  corporation  is 
fo  far  diffolved  that  the  crown  may  grant  a  new  charter  to 


I 

a  different  fet  of  men." 


This  was  an  information  in  the  nature  of  quo  warranto, 
which  called  upon  the  defendant  to  (hew  by  what  authority- 
he  claimed  and  exercifed  the  office  of  mayor  of  the  borough 
of  Helftone.  He  fet  forth  a  title  under  a  charter  of 
George  the  third,  the  validity  of  which  depended  On  the 
queftion,  whether  the  old  corporation  of  the  borough  un- 
der a  charter  of  Queen  Elizabeth,  was,  at  the  time  of  the 
granting  and  acceptance  of  the  former,  diffolved  ?■  ■  It 
appeared,  that  by  the  charter  of  Elizabeth  the  corporation 
confifled  of  five  aldermen,  who  were  to  continue  for  life, 
and  of  whom  one  was  to  be  mayor,  and  of  thirty- one 

C«)  Vid.  ante,  p.  453. 

burgefles. 


■ 


• 


OP     CORPORATIONS.  45^ 

burgeffes,  the  mo^ic  of  choofing  whom  it  is  not  material  to 
the  prefent  purpofe  to  ftate.  The  mode  of  chooiing  the 
mayor  was  this :  the  mayor  and  the  major  part  of  the  al- 
dermen were  to  meet  in  the  Guildhall  on  the  Sunday  next 
before  Michaelmas,  in  every  year,  and  then  and  there  no- 
minate two  of  the  aldermen  before  the  freemen  or  bur- 
geffes then  and  there  prefent,  who  were  to  eled  one  of 
thofe  two  fo  nominated  to  be  mayor  for  one  whole  year, 
and  until  another  fhould  be  chofen  to  the  office  in  the  fame 
manner.  It  appeared,  that  by  judgments  of  oufter,  in  in- 
formations in  the  nature  of  quo  warranto  againft  feveral 
perfons  for  a6ling  as  mayor,  aldermen,  and  freemen,  and 
by  the  natural  deaths  of  others,  the  corporation,  at  the  \ 

time  of  the  granting  and  acceptance  of  the  charter  of 
George  the  third,  was  reduced  to  one  alderman  TivAfeven 
burgeffes :  it  appeared  further,  that  this  charter  was  di- 
refted  to  the  inhabitants  of  the  borough,  all  of  whom,  except 
thefe  eighty  accepted  it. 

Against  the  title  of  the  defendant,  it  was  contended, 
principally  on  the  authority  of  the  cafe  of  Colchefter  and 
Seaber,  that  the  (?/rf  corporation  was  not  dijfoived^  and  con- 
fequently  that  the  new  charter  was  void. 

The  council  for  the  defendant,  after  a  very  elaborate  ar- 
gument on  the  nature  of  the  cafe,  which  he  fupported  by  the 
authorities  which  have  been  mentionedin  thecourfeofthis 
chapter,  anfwered  the  objedion  arifing  from  the  c;.fe  of  Col- 
chefter and  Seaber  in  this  manner :  'That  Lord  Mansfield 
began  by  obferving,  "  That  many  corporations,  fpr  want  of 
legal  maglftrates,  had  loft  their  adlivity  and  obtained  new 
charters  i"  that  the  very  outfet,  therefore,  of  his  defcrip- 
tion  of  the  cife  marked  it  to  be  effentially  different  from 
the  prefent,  where  the  old  corporation  had  not  obtained  a 
new  charter ;   that  the  examples'  which  he  brought  into 

compariibn 


460  THE    LAW 

comparifon  with  Colchefter,  were  of  corpc^ations,  which, 
after  having  been  declared  to  be  diflblved  by  the  ableft 
opinions  which  could  be  taken  in  the  courfe  of  official  duty^, 
had  received  thofe  new  charters  after  every  ftruggle  which 
could  be  made  againft  them.  That  his  Lordihip  added, 
^^  it  has  never  been  difputed,  but  that  the  new  charters 
revive^  and  give  activity  to  the  old  corporations ;''  that  all 
bis  reafoning,  therefore,  applied  to  cafes,  where  reftoring 
charters  had  been  granted  to  the  old  body,  and  not  to  thofe 
of  charters  of  creation  granted  to  a  newfetofmen;  that 
the  very  term  revive  implied,  that  they  had  given  new  life 
to  that  which  once  had  exified  but  had  ceafed  to  exift :  that 
this  was  put  beyond  all  doubt,  by  the  words  of  his  Lord* 
ihip  which  immediately  followed :  ^^  It  now  comes  on  as  a 
queftion,  whether  the  old  corporation  exids  after  this  judg- 
ment of  oufter  againft  the  mayor  and  all  the  aldermen,  and 
after  the  new  charter ;  and  it  is  argued  that  this  new  cor- 
poration is  totally  di/linSi  from  the  old  one.  But  there  is 
no  authority  J  nodiSium  for  it:"  that  his  Lordfhip  did  not  try 
the  exiftence  of  the  old  corporation  upon  their  fituation 
before  the  new  charter,  but  after  it :  whereas,  in  order  to 
make  that  cafe  apply  to  the  prefent,  the  new  charter  ought 
not  to  have  been  granted  to  the  old  corporation ;    "  that  1 

there  was  no  authority,  no  diftum,  in  fupport  of  the  argu- 
ment againft  the  exiftence  of  the  fame  corporation  as  it 
was  before,"  might,  therefore,  be  true,  as  applied  to  the  • 

cafe  before  his  Lordfhip,  where  the  crown  had  reftored  the  ! 

old  corporation  by  a  new  charter ;  but  applied  to  the  ftate 
in  which  they  were  before  that  grant  was  utterly  unfounded, 
and  repugnant  to  the  legal  knowledge  of  that  great  judge : 
that  it  was  fo  far  from  being  founded  in  fa£l,  that  every 
antecedent  authority  and  didlum  were  ftrongly  in  fupport 
of  the  affirmative  of  the  propofitioni  that  fome  of  thefe  au- 
thorities 


I 
II 


OF     CORPORATION  S^  46I 

thoricies  too  were  not  obfolete,  but  were  cafes  which  had 
made  confiderable  noife  at  the  time,  and  had  been  recently 
canvafTed :  that  it  was  abfolutely  impoffible  to  fuppofe  that 
all  chefe  had  been  overlooked  or  intended  to  be  fupprefTed 
in  filence,  as  Mr.  J.  Wilmot  exprefsly  mentioned  the  cafe 
of  Banbury,  which  was  not  queftioned,  much  lefs  denied  to 
be  law  either  by  him  or  the  reft  of  the  court.  That,  to 
the  obfervation  of  Lord  Mansfield,  ^^  that  without  an  ex- 
prefs  authority  fo  ftrong  as  not  to  be  gotten  over,  the  court 
ought  not  to  determine  a  cafe  fo  much  againft  reafon,  as 
that  the  parliament  (hould  be  obliged  to  interfere  to  fet 
it  right;"  it  might  be  anfwered,  that  there  vf^rc  feveral 
authorities  too  ftrong  to  be  gotten  over ;  and  that  as  to 
the  interference  of  parliament,  they  had  had  this  very  cafe 
before  them,  and  had  not  only  declined  to  interfere,  but 
had  exprefsly  provided  againft  the  interference  of  the  courts 
by  implication  from  the  general  provifions  of  the  fta- 
tute  {a).  It  was  true  that  Lord  Mansfield  obferved,  '^  that 
the  corporation  was  not  diftblved  by  the  judgments  of 
oufter  and  fubfequent  deaths  of  the  mayor  and  aldermen^ 
though  they  were  without  their  magiftracy ;  that  their  con- 
ftitution  was  not  deftroyed ;  that  their  former  rights  re- 
mained:*' and  then  afked,  "whether  a  freeman  of  Cdl- 
chefter  would  not  ftill  continue  to  have  a  right  to  com- 
mon; or  to  vote  for  members  to  parliament?"  It  was 
not  contended  that  judgments  of  oufter  againft  individuals, 
would,  merely  as  fuch,  diflblve  a  corporation;  but  that  if 
by  means  of  fuch  judgments,  or  by  any  other  means  what- 
ever, a  corporation  wa^^  deprived  of  an  integral  part,  and 
had  no  power  of  replacing  it,  by  confequence  of  law  it  was 
diflblved :  but  after  what  had  been  faid  by  his  Lordfliip  be- 

(tf)  Vid.  ante,  p.  4-53. 

fore. 


462  THE    LAW 

fore,  all  thde  expreffiohs  muft  be  underftood  with  limita- 
tion, and  applicable  only  to  the  cafe  then  before  him  :  for 
that  otherwife  the  argument  would  go  the  whole  length  oF 
faying  that,  though  judgment  of  oufter  had  been  obtained 
againft  tf//the  corporators,  yet  the  conftitution  would 

ftill  fubfift  fo  as  to  preclude  the  King's  grant. With 

refpeft  to  the  rights  of  common  and  of  voting,  which 
might  remain  to  the  individual  members  after  the  dcftruc- 
tion  of  their  corporate  aftivity,  it  had  never  yet  been  de- 
termined that  any  fuch  rights  would  furvive'the  wreck  of 
the  corporation :  it  was  true  that  Lord  Holt,  in  the  cafe  of 
Aihby  and  White  [a)y  faid,  that  fome  of  the  privileges  of  a 
corporation,  and  among  others,  that  of  voting  and  the 
right  of  common,  were  to  be  exercifed  by  the  members  in- 
dividually for  their  feparate  benefit ;  but  he  was  fpeaking  of 
a  corporation  in  the  full  exercife  of  all  its  fundiions  ;  he 
did  not  fay,  that  the  right  remained  after  the  extindion  of 
the  corporate  capacity  5    on  the  contrary  he  faid,  that  it 
was  agreeable  to  reafon  and  the  rules  of  law,  that  a  fran- 
chife  ibould  be  vefted  in  the  corporation  aggregate,  and 
yet  the  benefit  of  it  redound  to  the  individual  members : 
from  whence  it  was  rather  to  be  inferred  that  his  opinion 
was,  that  the  individual  members  had  no  rights  except  as 
members  of  the  corporation  aggregate.    Perhaps  what  was 
{Aid  by  Lord  Mansfield  might  be  reconciled  with  the  au- 
thorities cited,  by  faying,  that  the  old  corporators  might 
exercife  thefe  collateral  perfonal  privileges  concurrently 
with  the  members  of  the  new  corporation  j  but  in  this  cafe 
it  was  unneccfiary  to  difcufs  that  queftion,  if  it  appeared, 
as  it  mofl  clearly  did  from  the  authorities  cited,  that  the 
King  had  a  right,  by  the  difTolution  of  the  old  corporation, 
to  grant  all  their  corporate  franchifes  to  another  fet  of 

(a)  1  Ld.  Raym.  95«» 

f  men* 


OF     CORPORATIONS.  463 

men.— —All  the  remaining  expreffions  of  Lord  Mansfield 
and  the  reft  of  the  court,  could  in  general  be  applied  only 
to  fuch  a  cafe  as  was  then  before  them,  where  the  old  cor- 
poration had  been  revived  and  reftored  by  a  new  charter, 
which  was  further  confirmed  from  this,  that  by  the  report 
of  the  fame  cafe  in  Blackftone  (tf).  Lord  Mansfield  is  made 
to  fay,  that  it  frequently  has  happened  that  .by  judgments 
of  oufter  againil  perfons  illegally  eledled  no  regular  elei^ton 
can  again  be  had ;  and  the  corporation  is  commonly  faid  to 
be  thereby  dijfolved:  but  till  this  cafe  it  was  never  doubted 
but  that  by  a  new  charter  it  was  revived."  Thus  far,* 
continued  the  counfel  for.  the  defendant,  ^  the  intention 
and  opinion  of  the  judges  who  gave  judgment  in  the  cafe 
ofColchefter  and  Seaber,  have  been  confidered,.  and  en- 
deavoured to  be  collefted  from  the  interna]  evidence  af- 
forded by  the  cafe  itfelf.  In  order  to  make  that  cafe 
apply  againft  this  defendant,  it  is  neceflary  for  the  other 
fide  to  fliew  that  the  abflra<Sl  do(^rine  intended  to  be  laid 
down  by  the  judges  was,  that  thejofs  of  an  integral  part  of 
a  corporation  made  neceflary  to  its  corporate  aSivity  by 
the  terms  of  its  conftitution,  without  any  power  of  replac- 
ing it,  was  not  a  dilTolution.  But  befide,  that  the  fa£ls  of 
that  cafe  did  not  call  for  fuch  an  opinion,  and  that  fuch  is 
not  the  natural  inference  to  be  drawn  from  the  ex- 
preffions ufed  by  the  court  taken  altogether,  and  connecfled 
with  each  other,  the  very  fame  judges  in  fubfequent 
cafes  (A),  and  in  one  particularly,  very  recently  afterwards, 
delivered  a  contrary  opinion ;  in  a  cafe  too  arifing  out  of 
the  fame  borough  of  Colchefter,  and  growing  out  of  the 
former  judgment.  By  a  flatute  of  W.  3  (r),  a  corpora- 
tion had  been  created,  confifling  of  the  mayor  and  alder- 

{a)  1  Bl.  Rep.  s^,  (Jf)  Vid.  vol.  i,  404^410^  vol.  a>.i4. 

(c)  9  and  10  W.  3. 

men 


464  'THfi    LAW 

men  of  Colchefter  for  the  time  being,  and  of  forty-eight 
other  perfons,  to  be  guardians  of  the  poor  of  the  laid  town. 
The  latter  were  tobe  chofen  at  once,  twelve  out  of  each 
of  die  four  wards;  and  fix  of  each  twelve,  who  were  firft 
eleded,  were  to  ceafe  to  be  of  the  corporation  at  the  end 
of  two  years,  and  fix  others  to  be  chofen  in  their  room,  at  a 
meeting  to  be  holden  by  the  mayor  and  aldermen  for  that 
purpofe:  in  confequence  of  the  judgments  of  oufter  ob- 
tained againft  the  mayor  and  aldermen,  by  which  thofe  of^ 
fices  had  ceafed  in  the  corporation,  the  eledion  of  the 
guardians  could  not  be  continued ;  neither  could  the  re- 
maining guardians  hold  any  meetings  for  the  difpatch  of 
bufinefs  without  the  mayor  and  aldermen  by  the  provi- 
fions  of  the  zSti  at  die  time  of  the  revival  of  the  old  cor- 
poration by  the  new  charter,  none  of  the  forty-eight 
guardians  remained :  an  application  was,  therefore,  made 
to  the  court  of  King's  Bench  for  a  mandamus  to  the 
mayor  and  aldermen,  commanding  them  to  proceed  to  an 
eledion  of  forty-eight  perfons,  duly  qualified  according  to 
the  ftatute,  to  be  guardians  of  the  poor.  The  court  were 
of  opinion,  that  they  could  not  grant  a  mandamus  for  a 
whole  integral  part ;  and  that  the  corporation  which  was 
toconfift  of  two,  by  the  diffolutton  of  one  of  thefe  was  iifelf 
diffblved. — It  is  abfolutely  impoffible  that  the  fame  judges 
who  ufed.theexpreifions  attributed  to  them  in  this  cafe, 
could  have  juft  before  held  fentiments  fo  diametrically  op- 
pofite  to  them,  as  thofe  vdiich  have  been  imputed  to  them 
in  that  of  Colchefter  and  Seaber.  This  rather  (hews  that 
what  was  there  faid  by  them,  was  (aid  only  in  reference  to 
the  particular  cafe  then  before  them :  but  if  it  had  been 
otherwife  intended  at  the  time,  yet,  as  they  held  a  contrary 
language  in  a  cafe  immediately  fubfequent,  and  that  too 
with  an  exprefs  reference  to  the  former,  it  is  moft  na« 

tural 


I 
I 


OF    CORPORATIONS.  465 

tural  to  fuppofe  that  they  had  reconfidercd  their  former 
opinion,  and  thought  proper  to  corredl  it'  (a). 

The  court  adopted  the  reafoning  of  the  defendant's 
counfel,  and  exprefled  their  opinion  in  direfl  terms,  that 
whenever  by  any  means  a  corporation  was  deprived  of  an 
integral  part,  or  was  fo  far  reduced  as  to  be  incapable  of 
afting  or  of  continuing  itfelf,  it  is  fo  far  diffolved,  that  the 
King  may  grant  a  new  charter  to  a  new  fet  of  men,  al- 
though, inftead  of  that,  he  may  revive  the  old  body  by  a 
charter  of  reftoration  (h). 

The  next  mode,  by  which  it  is  fuppofed  a  corporation 
maybe  diffolved,  is  byfurrender;  which,  however,  muft 
be  enrolled,  becaufe  the  King  can  take  nothing  but 
by  matter  of  record  (c),  and  a  deed  is  not  of  record  without 
enrollment. 

That  a  corporation  may  furrender  any  of  its  poffeffions 
or  fubordinate  franchifes,  as  well  as  an  individual  may, 
where  it  is  not  prohibited  by  fome  pofitive  law,  feems  never 
to  haye  been  doubted :  but  its  power  of  furrendering  its 
corporate  exiftence  has  been  much  difputed;  The  queftion 
feems  to  have  been  agitated,  for  the  firft  time  with  any  de- 
gree of  earneftnefs,  in  the  cafe  of  the  quo  warranto  againft 
the  city  of  London,  in  the  time  of  Charles  the  fecond,  when 
thecounfel  for  the  city  thought  it  of  importance  to  their 
caufe,  to  contend,  that  a  corporation  could  not  be  diffolved 
by  furrender,  or,  in  other  words,  that  it  could  not  furren- 
der its  corporate  exiftence.  The  fame  doftrine  was  main- 
tained in  the  cafe  of  the  King  and  Amery,  by  the  counfel 
for  the  relator.  In  the  nature  of  the  thing,  there  does  not 
feem  to  be  much  metaphyfical  difficulty :    that  a  corpo- 

(a)  Rex  V.  mayor  and  aldermen  of  Colchefter,  3  Term  Rep.  234,  5. 

(b)  Rex  V.  John  Pafmore,  3  Term  Rep.  199-250. 
(0  Salk.  J91, 

Vol..  11.  H  h  ration 


466  THB    LAW 

ration  may,  in  point  of  fa£t,  deftroy  itfelf,  by  its  own  a£t 
feems  as  eafy  to  be  comprehended  as  that  a  natural  perfon 
may  put  an  end  to  his  life  by  his  own  hands.  The  z&lng 
part  of  the  corporation  put  the  common  feal  to  a  deed  of 
furrender;  carry  up  all  their  charters  to  St.  James's,  and 
lay  them  at  the  King's  feet ;  procure  the  furrender  to  be 
enrolled,  and  defert  all  their  corporate  functions :  muft  not 
the  confequence  be,  that  in  a  little  time  the  corporate  ex* 
iftence  muft  be  at  an  end?  ' Whether  fuch  a  fur- 

render (hall  be  permitted  by  the  law  is  a  matter  of  mere  po- 
litical confideration ;  and  the  negative  does  not  feem  to 
have  been  eftablifiied  by  the  law  of  England.     If  it  were, 
it  would,  notwithftanding,  be  impoffible  to  prevent  the  na- 
tural efFe£^  of  fuch  a  furrender  a^uaUy  made.    It  would  no 
doubt  be  a  breach  of  truft  in  the  a^ing  part  of  the  corpo- 
ration to  make  fuch  a  furrender  without  the  authority  of 
the  major  part  of  all  the  individual  members;    but  unlefs 
the  latter  had,  by  the  original  conftitution  of  the  corpo- 
poration,  the  power  of  fupplying  the  place  of  the  former 
by  an  election  from  among  themfelves,  I  do  not  fee  how 
the  effeft  of  a  complete  deftru<5Hon  of  the  corporate  exift- 
ence  could  be  prevented.     As  the  right  of  adling  as  a  cor- 
poration is  a  franchife  exifling  collectively  in  all  the  in- 
dividuals of  whom  the  corporation  is  compofed  {a) ;  there 
is  certainly  no  objection  to  all  thofe  individuals  furrender- 
ing  that  right. 

Few  cafes  have  occurred  on  this  fubjeft,  and  in  thofe 
that  have,  it  does  not  feem  to  have  been  doubted  but  that 
the  corporate  exiftence  might  be  furrendered  :  the  queftion 
has  in  general  turned  on  the  terms  of  the  furrender,  and 
Jthe  extent  of  their  fignification. 

(«)  Vid.  vol.  I;  14. 

It 


OF    CORPORATIONS.  46^7 

It  is  true  that  Sir  George  Trcby,  in  his  argument  in 
the  cafe  of  the  quo  warranto  againft  the  city  of  London  (^), 
argues,  from  the  ftatutes  which  were  pafled  in  the  time  of 
Henry  the  eighth,  vefting  the  furrendered  monaftries  in 
the  King,  that  it  muft  have  been  confidered  as  doubtful 
whether  they  were  vefted  in  him  by  the  furrenders  alone  : 
but  his  own  manner  of  dating  the  cafe  fliews,  that  the 
doubt  was  not  whether  the  monaftries  could  be  difiblved  by 
any  furrender,  but  whether  the  terms  of  the  furrenders  ac- 
tually made  were  fufficient  for  that  purpofe. 

The  rule  adopted  in  all  the  cafes  which  have  occurred 
on  this  queftion  feems  to  have  been  this :  that  when  the 
efffcdl  of  the  furrender  is  to  deftroy  the  end  for  which  the 
corporation  or  the  corporate  capacity  was  inftituted,  the 
corporation  or  the  corporate  capacity  is  itfelf  deftroy ed. 
Thus,  fays  Lord  Coke  (Z>),  on  the  authority  of  the 
book  of  aflize  (f ),  if  there  be  a  warden  of  a  chapel,  and 
the  chapel  and  all  the  pofTeffions  be  aliened,  he  ceafes  to  be 
a  corporation,  becaufe  he  cannot  be  warden  of  nothing. 
But  if  the  body  of  a  prebend  be  a  manor  and  no  more,  and 
the  manor  be  recovered  from  the  prebendary  by  title  para- 
mount, yet  his  corporate  capacity  remains,  becaufe  he  has 
Jlallum  in  choro  et  vocem  in  capitulo^  and  he  is  prebendary 
although  he  have  no  pofleiSions.  So,  where  it  is  held  that 
if  an  abbot  or  prior  and  convent  fold  all  their  pofFeflions, 
yet  the  corporation  remained,  '*  this,"  fays  he,  "  without 
queftion,  is  good  law,  //  they  were  the  chapter  to  a  btjhop  ;** 
from  whence  it  is  evident  his  opinion  was,  that  if  they 
were  not  the  chapter  to  a  bifliop,  the  alienation  of  all  their 
pofleflions  was  the  diflblution  of  the  corporation  :  and  the 
reafon  of  the  diftinflion  between  the  two  cafes  is  this;  that 
where  an  abbot  and  convent  were  the  chapter  to  a  bifliop, 

(i?)  Vid.  vol.  I,  9, 10.  {J})  3  Co.  75,  a.  (0  15  Aff.  8. 

3  H  h  2  that 


\ 

« 


468  THE    LAW 

that  was  confidered  as  the  great  purpofe  of  their  inftitution, 
which  was  not  aiFeded  by  the  alienation  of  their  pofTeffions : 
but  where  they  were  not  the  chapter  to  a  bifliop,  the  only 
end  of  their  inftitution  was  to  enjoy  property  in  a  corpo- 
rate capacity,  and  when  the  former  was  gone,  the  latter 
was  at  an  end. 

7  HE  two  great  cafes  on  which  the  advocates  for  the  in* 
diflblubility  of  a  corporation  by  (urrender  principally  rely, 
are  the  cafe  of  the  dean  and  chapter  of  Norwich,  in  the  40 
and  41  £1.  reported  in  Coke  and  Anderfon  (i?),  and  Hay- 
ward  and  Fulcher,  in  Palmer  and  Sir  William  Jones  (^}, 
in  the  5  Car.  i. 

The  ciicumftances  of  the  cafe  of  the  dean  and  chapter  of 
Norwich  were  thefe :  Henry  the  eighth,  by  virtue  of  his  au- 
thority as  fupremb  head  of  the  church,  tranflated  the  prior 
and  convent  of  Norwich  into  dean  and  prebendaries,  by  the 
name  of  Dean  and  Chapter  of  the  Cathedral  Church  of  the 
Hdy  Trinity  of  Norwich,  and  made  them  the  chapter  to 
the  biihop  and  his  fucceflbrs.  The  dean  and  chapter,  by 
their  deed  enrolled,  furrendered  to  Ed.  6,  in  the  fecond 
year  of  his  reign,  their  church  and  all  their  poffeffions, 
Thefe  are  the  terms  in  which  the  furrender  is  ftated  in 
Coke  and  Anderfon,  and  coniequently  the  judgment  muft 
be  confidered  as  referring  to  thefe  terms.  The  King  in 
the  fame  year  incorporated  the  former  dean  and  prebenda- 
ries of  the  former  chapter^  and  fix  other  perfons  (r ),  by  the 
name  of  "the  Dean  and  Chapter  of  the  Cathedral  Church 
of  the  Holy  and  undivided  Trinity  of  Norwich,  of  the 
foundation  of  King  Ed.  6;  and  three  days  afterwards  granted 
to  them,  by  the  name  of  "  Dean  and  Chapter  of  the  Ca- 
thedral Church  of  the  Holy  and  undivided  Trinity  of  Nor- 

{a)  3  Co.  73.    2  AnJer.  120,  165. 

(b)  Palm.  491,    Sir  W,  Jones,  166.  (0  Pahn,  491. 

•      wich," 


OF    CORPORATIONS.  469 

wich,"  omitting  the  latter  words,  "  of  the  foundation  of 
Ed.  65"  the  church  and  all  the  pofleffions  of  the  former 
dean  and  chapter,  except  certain  manors.  It  having  been 
made  a  queftion  whether,  on  account  of  the  omiffion  in 
the  name,  this  grant  was  good,  the  Queen  referred  the 
cafe  to  the  lord  keeper,  the  two  chief  juftices^  and  the 
chief  baron,  who  all  concurred,  '^  that  notwithftanding 
the  furrender  of  the  cliurch  and  all  the  pofleffions,  the  old 
dean  and  chapter  remained,**— The  reafon  of  this  deter- 
mination, as  given  in  Coke  and  Anderfon,  is,  ^^  that  fo  long 
as  the  biihopric  remains,  they,  being  the  bifhop's  chapter 
and  council,  may  well  remain,  although  they  have  not  any 
pofleffions,  and  fhall  be  now  as  they  were  at  the  firft,  with^ 
QUt  any  pofleffions," 

In  the  cafe  of  Hayward  and  Fulcher,  which  arofe  on  a 
queftion  concerning  a  leafe  made  by  the  fame  dean  and 
chapter,  the  furrender  is  ftated  in  fuller  terms,  to  have  been 
**  of  all  their  pofleffions,  rights,  liberties,  privileges,  and 
hereditaments,  which  they  had  in  right  of  their  corpora- 
tion.*' On  the  queftion,  whether  by  this  furrender  the  cor- 
poration viras  extinft,  the  judges,  according  to  the  report 
in  Jones  {a)^  refolved  unanimoufly  that  it  was  not ;  "  be- 
caufe  a  corporation  in  general^  and  fo  a  dean  and  chapter 
in  particular^  may  be  at  the  beginning  without  any  lands 
or  poflTeffions  annexed  to  them,  and  may  take  their  deno- 
mination from  a  place,  though  they  have  nothing  in  it ; 
and  as  at  the  beginning  a  corporation  may  be  without 
lands,  fo  though  they  grant  all  their  pofleflions,  yet  the 
corporation  continues,  and  in  particular,  though  dean  and 
chapter  furrender  all  their  poflTeffions,  yet  the  corporation 
continues,  and  they  continue  the  chapter  to  the  bifliop, 
^nd  notwithftanding  they  furrender  their  church,  yet  the 

(«)  Sir  W.  Jones,  x66. 

H  h  3  corporation 


470  THJE     LAW 

corporation  continues." — And  the  reporter  goes  on  to  (ay, 
*'  and  per  Dodridge,  the  dean  and  chapter,  infomuch  as 
they  are  the  council  of  the  biihop,  cannot  furrender  their 
corporation;  but  this  does  not  appear  to  me  to  be  law,  for 
a  corporation  of  dean  and  chapter,  though  it  be  fpiritual 
in  one  refpeft,  inafmuch  as  they,  by  the  canons  of  the 
church,  are  to  give  advice,  and  be  of  council  with  the 
bifliop,  yet  they  are  a  corporation,  and  enabled  to  fue  or 
be  fued,  and  to  purchafe  or  alien,  by  our  law,  to  wit,  by 
prefcription,  grant  of  the  King,  or  a£l  of  parliament ;  and 
in  this  refpecft,  they  may  well  diflblve  that  corporation  by  a 
proper  aft,  to  wit,  by  refignation  of  all  their  goods,  or  by 
the  death  of  all  the  corporation,  and  the  King  was  patron 
and  it  is  in  his  eleition  whether  he  will  collate  anew  or 
not,  for  till  he  has  collated  the  corporation  ihall  be  fuf- 
pended"  {a). 

In  the  other  report  of  the  cafe  {b\  Whitlock,  and  not 
Dodridge,  is  reprefented  as  faying,  "  if  the  dean  and  chap- 
ter may  be  diffolved  by  grant,  they  are,  as  it  were,/c?/<?  de 
fey  which  is  againft  nature.*'  But  as  to  this,  continues  the 
reporter,  Jones  faid,  "  dean  and  chapter  may  diflblve  them- 
felves;"  but  he  concluded  with  Whitlock,  that  Z^^r^  they 
are  notdiflblved. 

It  may  be  obferved,  that  the  reafon  given  by  Dodridge 
is  applicable  to  no  other  corporation  but  dean  and  chapter ; 
and  that  the  decifion  of  the  court  in  this  cafe,  as  well  as  in 
that  of  the  dean  and  chapter  of  Norwich,  was  founded 
not  on  an  opinion  that  the  corporate  exiftence  could  not  be 
furrendercd,  but  that  the  terms  of  the  deed  were  not  fuf- 
ficient  to  produce  that  eiFeft, 

{a)  The  language  of  the  reporter  is  not  very  corrc6V,  but  I  have 
given  a  literal  tranllation,  that  the  reader  may  draw  his  own  conclufion 
from  the  cafe.  (^)  Palm.  501. 

These 


r 


OF    COHPORATIONS.    *  47I 

These  two,  however,  are  the  cafes  which  have  been 
yelied  on  as  the  ftrongeft  judicial  authorities,  "  that  the 
franchife  of  being  a  corporation"  cannot  be  furrendered  : 
and  Treby,  after  citing  them  with  fome  triumph,  proceeds 
thus:— • 

**  There  is  a  cafe  in  Dyer  [a)j  which  feems  the  only  cafe 
againft  us  on  this  point:  there  were  two  deans  and  chapters, 
one  of  St.  Patrick's,  and  the  other  of  Chrift  Church,  in 
Dublin;  both  thefe,  and  not  one  of  them  only,  were  to- 
gether one  chapter  to  the  archbifliop  of  Dublin :  one  of 
thefe  furrendered,  and  their  houfe  was  ufed  as  a  place  far 
the  courts  of  juilice;  then  a  leafe  was  made  by  the  biihop, 
confirmed  by  the  remaining  dean  and  chapter,  which  was 
that  of  Chriftchurch  :  and  whether  that  leaie  was  good  or 
not,  was  the  queftion  (i) :  and  truly  that  was  the  only 
queftion  made  in  that  book,  and  fo  'tis  of  little  authority 
as  to  any  thing  elfe  :  but  'tis  true  that  that  book  does  fay  in 
the  end  of  the  cafe,  that  the  leafe  was  held  good,  "  quia 
corporatio  et  capitulum  Sanfti  Patricii  praedi<Si  fuit  per  do- 
num  et  furfum  redditionem  decani  et  capituli  praedicti  legi- 
time diflblutum  et  terminatum,"    "  To  this  I  anfwer," 

'^  First,  there  was  no  occafion  for  this  reafon,  becaufe 
it  did  digrefs  from  the  main  point  of  the  cafe." 

"  Secondly,  it  was  a  private  extra-judicial  opinion  ;  it 
was  the  opinion  of  but  five  judges,  and  for  ought  appears, 
feven  might  be  oi another  opinion,  and  yet  the  cafe  was  fent 
for  the  opinion  of  <?// the  judges  here,  becaufe  the  lawyers  in 
Ireland,  it  feems,  did  make  a  great  doubt  of  it.  And  it  was 
alfo  an  opinion  and  judgment  of  the  favourable  fide,  for  it 
was  to  confirm  a  predeceflbr's  leafe.     But," 

"  Thirdly,  Certainly  the  cafe  is  miftaken,  for  the 
furrender  could  not  be  good  without  the  confent  of  the 

{a)  Dyer,  282.    Treby's  Arg.  11. 
{b)  Vid.  this  cafe,  vol.  i,  p.  113,  n, 

H  h  4  bifliop, 


( -- 


47^  T  H  B     LAW 

biihop,  which  is  alfo  added  in  the  end  of  the  cafe ;  he  is 
the  patron,  and  muft  neceflarily  confirm  their  aSs  to 
make^them  valid,  cfpecially  they  being  inftituted  and  given 
to  hinn  for  his  advice  in  the  government  of  the  church  and 
the  difpofal  of  its  lands." 

"  Fourthly,  I  have  this  further  anfwer,  that  my  Lord 
Coke  feys  (a)j  and  'tis  not  denied,  that  this  furrender  was 
toy  a£l  of  parliament,  or  elfe  it  had  not  been  good.  And 
beyond  that," 

^  Fifthly,  I  have  by  me  a  manufcript  of  my  Lord 
Dyer's  reports,  the  moft  authentic  one,  which  was  my 
Lord  Coke's,  and  has  his  own  hand  to  it  in  fundry  places ; 
and  by  that  he  does  often  corred  the  prints  of  Dyer,  and  fo 
alfo  he  might  have  done  in  this  cafe ;  for  there  all  thefe  latin 
words  are  left  out,  there  is  not  one  of  them,  nor  any  fpace 
left  to  put  them  in,  nor  any  blot  for  their  being  razed  oat> 
it  is  an  addition  of  the  publiiher,  and  printed  in  another 
letter  than  the  reft  of  the  cafe  is ;  'tis  not  in  that  book 
which  I  take  to  be  the  tnieft  original  of  Dyer ;  befides, 
my  Lord  Coke's  anfwer,  that  it  was  by  a£l  of  parliament, 
makes  an  end  of  all." 

The  only  remaining  cafe  on  this  fubje£l  is  that  of  the 
King  and  Grey,  which  occurred  in  1726  (i), — It  appeared 
that  in  the  15  Car.  2,  a  charter  of  incorporation  was 
granted  to  the  borough  of  Colcheftcr,  in  which  a  power 
was  given  to  make  juftices  of  the  peace  for  the  faid  bo- 
rough, who  (hould  hold  their  feffions  there  j  with  a  claufe 
excluding  the  juftices  of  the  county  from  any  jurifdiflion 
within  the  borough.  In  36  Car.  2,  this  charter  was  fur- 
rendered,  and  in  the  deed  of  furrender  was  a  claufe,  by 
which  the  corporation  gave  up  all  the  liberties  and  privileges 
which  they  then  enjoyed.    By  letters  patent  of  King  Wil- 

(^a)     Leon.  234.  (b)  Rex  v.  Grey,  8  Mod.  358. 

liam 


OP    CORPORATIONS.  473 

liam  and  Queen  Mary,  all  the  lands  and  privileges  of  this 
corporation  were  granted,  reftored,  and  confirmed  to  them, 
in  as  large  a  manner  as  at  any  time  they  had  enjoyed  them 
before  the  furrender. 

On  an  indictment  found  at  the  quarter  feffions  held  in 
Colchefter  for  the  county  of  EfTex,  and  removed  by  cer- 
tiorari into  the  King's  Bench,  the  principal  queflion  re- 
lated to  the  effed  of  the  furrender  and  the  letters  patent  of 
reftoration. 

On  one  fide  it  was  contended,  that  the  furrender  was  an 
abfolute  difTolution  of  the  corporation,  and  that  confe- 
quently  the  letters  patent  were  void,  as  they  fuppofed  the 
exiflence  of  a  corporation  which  did  not  in  fad  exifl. 

On  the  other  it  was  contended,  that  the  corporation  was 
hot  intirely  difTolved,  and  that  though,  by  the  furrender, 
their  lands  and  liberties  had  been  given  up,  yet  ftill  they 
had  a  corpora ^e  capacity  to  take,  and  confequently  the 
charter  of  William  and  Mary  was  good. 

One  judge  held,  that  though  barely  by  the  furrender  o^ 
the  charter,  the  corporation  was  not  diflblved,  yet  that  its 
very  being  was  deftroyed  by  the  words  by  which  they  gave 
up  all  the  liberties  and  privileges  which  they  enjoyed. 

The  other  three,  on  the  authority  of  the  doubts  ex- 
prefTed  in  the  cafe  of  the  city  of  London,  feemed  inclined 
to  the  other  fide  of  the  queflion ;  but  as  it  was  a  matter  of 
great  moment,  the  cafe  was  adjourned ;  and  it  does  not  ap- 
pear whether  any  judgment  was  ever  given. 

Such  are  the  cafes  which,  it  has  been  contended,  efla- 
blifh  the  principle,  that  a  corporation  cannot  be  deflroyed 
by  furrender  and  acceptance  of  the  crown,  and  that  it 
ftands  uncontradicted  by  any  authority  on  the  other 
fide(^}. 

(a)  Rex  v.  Amcry,  258,  415. 

The 


474  T  H  E    L  A  W 

Th£  laft  mode  by  which  it  is  fuppofed  a  corporatipxi 
may  be  diilblved,  is  by  the  judgment  of  a  court  of  law,  for 
a  forfeiture  of  its  corporate  exigence.  This  was  the  great 
queftion  agitated  in  the  cafe  of  the  quo  warranto  againft 
the  city  of  Loodoa :  in  that  conteft  the  fir  ft  legal  abilities 
were  engaged  on  both  fides ;  and  the  utmoft  poflible  in- 
duflry  was  uled  to  collect,  from  every  fource  of  informa- 
tion,  every  thing  wbich  had  the  moft  diftant  relation  to  the 
queftion.  In  the  only  two  cafes  (^)  in  which  the  fubje£t 
appears  to  have  been  fince  inveftigated,  little  {b)  more  is  to 
be  found  than  a  repetition  of  the  arguments  there  urged,  and 
of  the  authorities  there  produced :  of  what  follows,  there- 
fore, the  principal  part  cannot  be  expefted  to  be  more  than 
a  fummary  account  of  thofe  arguments  and  authorities. 

The  whole  of  what  was  faid  oaboth  fides  may  be  re- 
duced to  three  diftindl  queftions.  i,  Whether,  in  the  na- 
ture of  the  thing,  the  being  of  a  corporation  can  be  for- 
feited ?  2,  Whether  the  records  of  proceedings  that  have 
been  adc^ed  againft  corporations,  prove  an  abfolute  for- 
feiture in  point  of  fad  ?  And,  3,  admitting  that  the 
being  of  a  corporation  may  be  forfeited,  what  is  the  proper 
legal  proceeding  to  carry  the  forfeiture  into  effedl  ? 

The  affirmative  of  the  firft  queftion  is  founded  on  the 
general  propofition,  thatto  every  franchife  there  is  a  con- 
dition tacitly  annexed,  the  breach  of  which  incurs  a  for- 
feiture of  the  franchife.  That  a  corporation,  in  the  charac- 
ter of  ^  political  pcrfon^  may,  as  well  as  a  natural  perfon^ 
by  a  breach  of  th^t  condition,  forfeit  any  of  its  fubordinate 
franchifes,   was  never  doubted.    In  the  prefent  cafe  the 

(a)  Sir  James  Smith's  cafe,  4  Mod.  52.  Skin.  310.  i  Show.  263* 
Carth.  217,  and  Rex  v.  Amery,  2  Term  Rep.  515,  and  in  a  feparate 
publication  in  2  vols,  quarto. 

(b)  The  invclligation  of  the  effect  of  a  judgment  quoufque  in  Rex  V., 
Amery  is  new.     Vid.  poft. 

great 


^   OF    CORPORATION  fl«.  475 

great  quefi;ion  was,  how  far  this  principle  ihould  be  applied 
to  the  being  of  a  corporation. 

Sir  George  Treby  and  Mr.  Pollexfen,  who  argued  for 
the  city,  fupported  the  negative,  by  aflerting  that  a  cor- 
poration was  not  a  francbife,  and  iniifting  on  the  inviiibility, 
impeccability,  and  immortality  attributed  to  it  in  the  books 
of  law(^)s  and  Mr.  Pollexfen  (^)  likewife  infifted  much 
on  the  political  inconveniencies  which  muft  enfue  from  its 
being  actually  diflblved  by  forfeiture :— as  there  is  no  foun- 
dation for  the  invifibility,  impeccability,  and  immortality 
of  a  corporation  in  the  fenfe  in  which  they  apply  the 
words  (r),  their  argument,  fo  far  as  it  refts  on  thefe,  \& 
neceflarily  defedive:  with  refpe£l  to  political  inconve- 
niencies, however  great  they  may  be,  they  can  zStSt  3, 
queftion  in  a  court  of  law  only  where  there  is  no  other 
guide  for  its  decifion*  The  denial  that  a  corporation  is  a 
franchife,  arifes  from  an  inaccuracy  in  the  mode  of  ftating 
the  propofition.  *'  That  it  is  a  franchife  in  a  corporation 
to  be  a  corporation,"  is  certainly  attended  with  as  much 
metaphyseal  difficulty  as,  ^^  that  it  is  a  franchife  in  a  man 
to  be  a  man:"  but  there  is  no  difficulty  in  conceiving 
**  that  the  right  of  ailing  as  a  corporation  is  a  franchife  in 
the  individuals  that  compofe  it"  (d)»  Sir  Robert  Sawyer, 
the  attorney  general,  makes  this  idea  the  foundation  of  his 
argument  on  this  part  of  the  fubjed,  and  from  thence 
ihews  the  very  being  of  a  corporation  may  be  forfeited  ; 
though  perhaps  it  may  be  doubted,  whether  in  his  mode  of 
deducing  his  conclufion,  he  be  always  logically  correfl.— 
Speaking  of  corporations  fole,  he  fays(^},  "fingle  bodies 
politic  have  iudifputably  fuch  conditions  annexed  to  them 

(a)  Treby's  Arg.  3,  4,    Pollcxfen's  Arg.  115. 

(h)  III,  112,  113.  (r)  Vid.  vol.  i,  15 — 18,  71. 

(^)  Vid.  vol.  I,  14.  (e)  P.  ai  of  his  Arg. 

on 


476  THE    LAW 

on  the  tnift  of  tfaeiiT  creation ;  and  the  breach  of  the  con- 
dition is,  in  law,  good  caufe  of  feparating  the  politic  per- 
fon  from  the  natural  by  deprivation,  which,  in  the  civil 
law,  is  of  the  fame  tStSt  as  judgment  of  pufter  by  the  com-- 
mm  law— and  certainly  the  union  between  the  politic  a^d 
natural  body  is  as  clofe  and  as  ftrong  in  fole  as  in  aggregate 
corporations. — ^Yet  not  only  treafon  and  fdony,  but  mifl- 
demeanors  of  far  left  confequence,  committed  by  the  na- 
tural peHbn,  will  forfeit  the  corporate  right,  and  amount 
to  a  breach  of  the  condition  annexed  by  law : — ^fuch  fmall 
crimes  as  wafte  and  wilful  dilapidations,  will  be  caufes  of 
forfeiture.** 

It  has  been  remarked  {a\  that,  if  this  analogy  between 
deprivation  and  judgment  of  oufter  be  juft,  it  is  clear  that 
deprivation  of  the  natural  i>erfon  in  the  cafe  of  corpora- 
tions fole,  and  eccleiiaftical  corporations,  does  not  at  all 
afFeA  the  pcditic  capacity ;  that  the  latter  remains  unal- 
tered and  unimpaired  to  be  exercifed  and  enjoyed  by  the 
>  next  perfon  who  (hall  be  put  in  pofTeflion  of  it ;  that  in  like 
manner,  where  judgment  of  oufter  may  be  given  againft 
farticular  members,  or  even  againft  all  the  members  of  a 
corporation,  by  which  there  is  a  feparation  between  the 
natural  perfons  who  held  the  franchife,  and  the  franchife 
itfelf;  yet  ftill  the  franchife  itfelf  exifts:  and  that  a  judg- 
ment of  oufter  no  more  deftroys  the  franchife  of  a  corpo- 
ration aggregate,  than  that  of  deprivation  does  that  of  a 
corporation  fole. 

But  Sir  Robert  Sawyer  himfelf,  in  another  part  of  his 
argument  (^),  puts  this  matter  in  a  different  point  of  view; 
obferving,  "  that  if  there  bq  any  advantage  in  point  of 
duration,  it  inclines  to  the  fide  oijole  corporations,  as  bet- 

(/?)  By  Adair,  ferjcant^  in  Rex  ?•  Aniery»  261^  416* 

ter 


OF   CORPORATIONS.  477 

ter  framed  by  policy  to  have  continuance  than  aggregate 
corporations,  i,  Becaufe  the  choice  of  the  fucceiTors, 
whether  the  cprporation  be  ele£live,  donative,  or  prefenta-, 
tive,  is  placed  elfewhere,  and  not  in  the  perfon  himfelf,  fo 
that  it  is  not  in  his  power  to  prevent  the  fucceilion.  z,  Be- 
caufe the  law  leaves  it  not  in  his  power  to  determine  the 
corporation,  either  by  furrender  or  forfeiture,  but  during 
his  life,  and  fo  he  cannot  prejudice  the  fuccefiion.  But  in 
lay  corporations  aggregate,  the  power  of  continuing  the 
fuccefiion  is  trufted  to  the  members,  fo  that  the  whole 
right  is  in  them,  which  they  may  determine  either  by  mt 
eledling,  or  by  elefting  thofe  whom  the  law  incapacitates : 
or  every  man  may,  for  good  caufe,  be  disfranchifed,  or  the 
franchife  for  caufe  may  be  feized,  and  confequently,  for 
want  of  fuccef&on,  fail." 

Referring  to  the  cafe  of  James  Bagg(tf),  he  fays, 
"  he  takes  it  to  be  an  exprefs  judgment  in  point,  that  there 
is  a  condition  annexed  by  law  to  every  corporation,  and 
that  the  breach  thereof  is  a  forfeiture  :"  and  obferving  that 
each,  individual  member  of  an  aggregate  corporation  may 
forfeit  his  right  to  be  a  member,  by  the  commiilion  of  fuch 
crimes  or  offences  as  are  there  pointed  out ;  from  thence 
he  draws  this  conclufion,  that,  as  every  member  may  for- 
feit that  which  any  member  may,  the  fame  afts  which  will 
forfeit  the  right  of  every  mtmhQt  fepar at ely  confidered,  if 
^tf«^  jointly  by  ^//the  members,  will  have  the  fame  effeft, 
or,  in  other  words,  will  be  a  forfeiture  of  the  corporate 
exiftence  of  the  whole  corporation  {b). 

In  another  part  of  his  argument  (r ),  in  which  he  dif- 
cuffes  the  nature  of  the  right  to  a<Sl  as  a  corporation,  and 
fhews  that  it  is  a  franchife  vefted  in  the  individuals  collec- 


{a)  Vid.  ante,  p,  50,  63,  64.. 

(^)  P.  ai,  22  of  his  Arg. 

(0  P.  8. 

' 

tively 

478  THE     LAW 

tively  taken,  he  draws  this  conclufion:  "and  therefore, 
when  the  queftion  is  of  non-ufer  or  abufer  of  franchifes  by 
a  corporation,  it  muft  of  neccflity  be  intended  for  fome 
a£b  or  negligence  of  the  natural  perfons,  or  of  thofe  offi- 
cers who  were  employed  by  them :  and  the  queftion  will 
reft  only  on  this,  what  a6ls,  or  what  omiffions  of  the  na- 
tural perfons  will  afFe«fl  this  right,  in  which  all  the  mem- 
bers have  an  intereft."  "  But  this  queftion,"  fays  he,  in 
another  place  (/?),  **  what  a£is  of  the  members,  and  of 
what  number  of  the  members  will  forfeit  the  whole  fran- 
chife,  I  know  no  where  diftinftly  put  in  our  books,  but  as 
they  lie  fcattered  in  the  inftances  of  forfeitures  taken,  and 
franchifes  feized ;  otherwife  than  upon  the  general  rules  of 
non-ufer  and  abufer  of  the  truft  committed  to  them.  But 
the  civilians,"  continues  he,  "  treat  largely  on  thefe  quef- 
tions ;  whether  the  cities,  colleges,  and  univerfities  may 
be  forfeited  and  diflblved,  and  what  a£ls  of  the  members 
will  be  caufes  of  fuch  forfeitures."  He  then  cites  Ji.paflage 
^rom  Oldradus  de  Ponte,  which  clearly  proves  this  laft 
podtion. 

In  the  cafe  of  the  city  of  London  two  caufes  of  for- 
feiture were  alleged,  i.  An  oppreflive  bye  law  made  by 
the  common  council  for  levying  money,  and  the  fa6l  that 
money  was  actually  levied  under  it  on  the  fubjedls  at  large ; 
and  2,  a  feditious  petition  to  the  King,  drawn  up  by  the 
authority  of  the  common  council,  and  printed  and  diftri- 
buted  throughout  the  kingdom  by  their  order.— The  coun- 
fel  for  the  city  contended  ftrenuoufly,  that  the  corporation 
at  large  were  not,  in  this  cafe,  bound  by  the  adls  of  the 
common  council ;  and  that  if  they  were,  yet  the  fafts 
alleged  were  not  fufficient  caufes  of  forfeiture. — On  both 
thefe  points,  however,  the  judgment  of  the  court  was.  de- 

{a)  P.  13. 

cidedly 


OF    CORLPOk  A  t  IONS.  479 

tidedly  againft  thcrti,  and  ccrtzirAy  Ttith  good  reaibn  on 
the  firft,  whatever  may  be  faid  a$^  to  the  laft. 

To  fliew  that,  m  point  of  fadl:^  corporations  had  often 
been  forfeited,  and  that  forfeiture  enforced  by  judgment, 
the  attorney  and  folicitor  general,  among  others,  produced 
the  following  examptes. 

In  15  H,  3,  the  town  of  Hereford  was  feized  into  the 
King's  hands  by  the  flierifF  of  the  county,  for  holding  a 
ifiafket  contrary  to  the  King's  prohibition.  On  certificate 
of  thi«  into  chancery,  a  writ  iflued  to  the  fberiSy  com* 
manding  him  to  keep  it  in  the  King's  hands^  donee  (kminus 
Rex  alttid  inde preceperit  {a). 

In  3  Ed.  I,  on  an  inquifition  found  of  purpreftures 
within  the  King's  Warren  of  Dover,  by  flopping  a  water^ 
courfe,  by  which  the  warren  was  overflown,  a  writ  iflued 
from  the  CQurt  of  Dover,  to  diftrain  the  oflTender  by  his 
goods,  to  amend  and  remove  the  purprefture.  The  officer 
diftrained  the  cattle  of  the  offender,  who  lived  at  Sandwich, 
within  the  Cinque  Port :  fome  of  the  men  of  Sandwich 
made  refcue,  and  when  the  conflable  of  Dover  fcnt  mcflen- 
gers  to  complain  of  this  to  the  mayor,  and  to  require  re- 
drefs,  feveral  of  the  men  of  Sandwich  attacked  the  meflen- 
ger  and  feverely  beat  him.  The  conftable  fcnt  more  offi- 
cers to  fee  right  done,  againfl  whom  the  town  was  barri- 
caded and  chained,  and  who  were  kept  out  by  the  townf- 
men  in  a  hoflile  manner.  The  conflable  went  in  perfon, 
and  having  after  fome  time  fupprefled  the  tumult,  the  com- 
monalty then  fubmitted,  and  prayed  he  would  deliver  their 
fubmiffion  to  the  King,  which  they  produced  under  their 
common  feal.  This  was  accordingly  delivered  by  the  con- 
flable to  the  King  in  council,  and  the  queflion  was  ad- 
journed into  parliantpnt.    The  mayor,  bailifi^,  and  com^ 

(«)  Savvy,  Arg.  18, 

monalty 


480  THS    LAW 

monalty  were  ordered  to  attend  before  the  King  and  his 
councQ  in  Parliament  on  a  certain  day.  On  that  day,  in 
the  prerence  of  the  mayor  and  bailifis,  who  attended  for 
the  whole  community,  judgment  was  thus  entered  on 
record. 

CoNSiDERATUM  fuit  per  dominum  Regem  et  conci« 
lium  fuum  in  parliamento,  quod  mapritas  et  Ubtrtas  de 
Sandwich  pro  prxdi£l.  tranfgreffionibus,  in  manus  domini 
Regis  capiatur,  et  tradatur  in  cuftodiam  conftabulario  de 
Dover  ad  difponendum  de  prxdi£b.  villa  fecundum  com- 
munem  legem  et  confuetudinem  regni,  non  obftante  aliqua 

libertate. 

^^  Both  from  the  form  and  matter  of  this  entry,*'  fays  Sir 
Robert  Sawyer  (<?),  "  it  is  evident  that  this  deciiion  was^'«- 
dicial znd  not  Ugijlative  ■  here  is  a  judgment  only  of 

leizure  on  z.forfeitur€\  yet  it  amounted  to  a  real  oufler ;  for 
the  town  was  a«5tually  divefted  of  its  liberty,  and  delivered 
up  to  the  governpnent  of  the  common  law.'V^ 

Among  the  rolls  of  9  Ed.  i,  there  is  the  record  of  an 
information  at  the  King's  fuit,  prefented  by  the  (heriff  of 
the  county,  againft  the  mayor  of  Sandwich  and  three  others, 
for  aflaulting  the  (heriff 's  bailiff  on  execution  of  the  King's 
writ  within  Stanore,  beating  the  officer,  taking  the  writ 
from  him  and  tearing  it,  and  ftamping  it  under  their  feet. 
They  plead  to  the  jurildiiSlion,  that  Stanore  was  within  the 
liberty  of  Sandwich,  within  the  Cinque  Ports,  and  that 
they  are  not  bound  to  anfwer  elfewhere  than  at  the  court 
at  Shepway.  The  plea  was  overruled ;  they  infifted  on 
their  exemption,  and  refufed  to  give  any  further  anfwer, 
on  which  judgment  was  given  that  they  (hould  be  com- 
mitted to  prifon:  "  et  quia  Johannes  Dennis,  major.de 
Sandwich,  convidus  eft  de  tranfgreffionibus  praedidisi  et 

(tf)  Arg.  28. 

faiflum 


/ 

OF    CORPORATIONS,  '        481 

fa<9:uin  majorisitus  in  his  quae  tangunt  comitatum  eft  faflum 
ipfius  communitat',  confideratum  eft  quod  communitas  dc 
Sandwico  amitt*  libertatem  fuam." 

"  This,"  fays  Sir  Robert  Sawyer  (<?),  "  is  an  exprefs 
judgment  of  the  court  of  King's  Bench,  on  the  forfeiture 
of  the  liberty,  for  a  crime  committed  by  the  mayor  and 
others,  in  a  matter  relating  to  the  whole  liberty. ^^ 

In  33  Ed.  I,  the  liberty  of  the  city  of  Winchefter  was 
eized  into  the  King's  hands,  by  judgment  of  the  King 
and  lords,  for  fuffering  a  hoftage  to  efcape,  who  had  beefn 
committed  to  their  charge  by  the  King  for  fafe  cuftody  : 
a  writ  of  feizure  was  direfted  to  the  flierifF  of  the  county, 
quod  prsedidi.  civitat'  Wintoniae  et  libertatem  ejufdem  ci- 
vitatis,  cum  omnibus  ad  earn  tangentibus  fme  dilatione  ca- 
piat in  manum  Regis,  et  eas  falyo  cuftodiat,  iknec  Rex 
^liud  praceperit.  **  Whereby,"  fays  Sir  Robert  Sawyer, 
*'  the  franchife  being  feized,  the  men  of  the  city  were  put 
under  the  government  of  the  common  law  officer.  The 
city  afterwards  compounded  with  the  King  for  five  hundred 
marks j  and  then  the  King  reftored  to  the  fame  mayor  and 
citizens  the  city  and  liberty  aforcfaid,  to  have  and  to  hold 
in  the  form  in  which  they  had  held  them  before  the  feizure 
of  the  fame  into  the  King's  hands  ;  and  letters  patent  of 
reftitution  were  granted,  and  a  writ  of  reftitution  was  di- 
re<SI:ed  to  the  (heriff. 

Examples  of  the  fame  kind  are  given  by  the  attorney 
general,  with  refpeft  to  Ipfwich,  Norwich,  Oxford,  Eve- 
iham,  and  Southampton.     The  latter  fubmitted  to  a  fine,  . 
and  raifed  their  fee  farm  rent  to  20I.  per  annum  (b). 

The  cafe  of  the  town  of  Cambridge  it  may  be  pro- 
per to  ftate  more  particularly,  on  account  of  the  remarks^ 
made  on  it  by  both  fides. 

(a)  Arg.  27.  {/;)  Saw^tf  8  Arg.  29,  ^o. 

I  i  Lord 


482  THE    tAW 

Lord  Coke  ftates  it  to  this  effe<El  {a) :  the  mayor,  bai- 
lifFsy  and  commonalty  of  Cambridge  were  accufed,  for 
that  they  in  the  late  tumults  and  uproars  confederated  with 
divers  other  mifdoers,  broke  open  the  treafury  of  the  uni- 
verfity  of  Cambridge,  and  took  from  thence  and  burned 
feveral  charters,  &c.  of  the  univerfity,  and  alfo  compelled 
the  chancellor  and  fcholars,  under  their  common  feal,  to 
releafe  to  the  mayor  and  burgefles,  all  manner  of  liberties, 
and  alfo  all  a6Uons  real  and  perfonal,  and  further  to  be 
bound  to  them  in  great  fums  of  money.  Whereupon  it 
was  agreed  in  form  following :  that  one  writ  (hould  be  di<* 
re£led  to  the  mayor,  bailifis,  and  commonalty  of  Cam- 
bridge, that  then  were,  to  appear  in  parliament  and  anfwer; 
and  another  writ  to  the  mayor  and  bailiffs  that  were  at  the 
time  of  the  offence.  The  mayor  and  bailiffs  that  then  were, 
appeared  in  proper  perfon,  and  pleaded  not  guilty:  the 
commonalty,  by  their  attorney,  appeared  at  the  day.— 
Thofe  who  were  mayor  and  bailiffs  at  the  time  of  the  of- 
fence appeared  alfo  in  proper  perfon,  and  the  mayor 
anfwered  that  he  was  not  privy  to  any  fuch  a6l^  but  only 
by  compulfion  of  others.  The  burgeffes  of  Cambridge 
delivered  into  the  parliament  two  deeds  fealed  by  the  chan- 
cellor and  fcholars ;  one  of  which  contained  a  releafe  of 
all  liberties  and  privileges,  with  a  bond  of  3000L  to  releafe 
all  fuits  againft  the  burgeffes ;  and  the  other  was  a  releafe 
of  all  actions  real  and  perfonal.— Thefe  were  ordered  to  be 
cancelled. — The  chancellor  and  fcholars,  by  way  of  peti- 
tion and  in  form  of  articles  exhibited,  gave  a  hiftory  of  the 
whole  tranfa£lion ;  on  the  reading  of  this,  it  was  demanded  of 
the  burgeffes  what  they  could  fay  why  their  liberties,  lately 
confirmed  by  the  King,  Ihould  not  be  feizcd  into  the 
King's  hands  as  forfeited. 

{a)  4  Inil.  szS. 

They 


OF    CORPORATIONS.  483 

They  required  three  things,  i,  A  copy  of  the  bill. 
2,  Counfel.  And  3,  Refpite  to  anfwer.  To  the  firft  it 
was  anfwered,  that  ftnce  they  had  heard  the  bill,  that  was 
rufficient,  for  that,  by  law,  they  ought  not  to  have  a  copy. 
To  the  fecond  it  was  anfwered,  that  they  were  then  ap- 
pointed to  anfwer  to  no  crime  or  offence,  but  only  touching 
their  liberties.  After  many  dilatory  fhifts  and  fubterfuges, 
the  faid  burgeffes  having  no  colour  of  defence  touching 
their  liberties  only,  fubmitted  themfelves  to  the  King's 
mercy  and  grace,  faving  their  anfwers  to  all  other  matters. 
The  King  thereupon,  by  common  confent  of  parliament^  and 
by  authority  of  thefamcj  feized  the  fame  liberties  into  his 
hands  as  forfeited;  and  afterwards  granted  fome  of  thefe 
liberties  to  the  univerfity,  and  the  remainder  to  the  town, 
increafmg  their  fee  farm. 

In  the  introdu6lion  to  this  cafe.  Lord  Coke  refers  to  the 
rolls  of  parliament  of  5  R.  2.  but  in  a  marginal  note  at 
the  bottom  he  fays,  ''  Nota,  by  aSi  of  parliament.  Vid. 
Rol.  Pari.  8R.  2,  n.  II  " 

The  folicitor  general  having  referred  to  this  cafe  .as  an 
authority  that  a  corporation  might  be  feized  for  a  forfeiture, 
Sir  George  Treby  tikes  advantage  of  the  words,  **  by 
common  confent  of  parliament,  and  by  authority  of  the 
fame,"  in  the  body  of  the  cafe,  and  of  this  marginal  note, 
to  {hew  that  fuch  a  feizure  could  not  be  by  the  judgment  of 
2L  court  of  law  {a). 

The  attorney  general  (^  j,  in  anfwer  to  Treby,  (ays  he 
is  mijled  by  thofe  words  and  that  marginal  note,  and  fup- 
pofes  he  had  looked  no  farther  than  the  4  Inft.  taking  it 
for  granted  that  the  record  was  that  mentioned  in  the  note, 
when  in  truth  it  was  that  mentioned  in  the  introduc- 
tion to  the  cafe.    He  fays,  that  it  appears  by  the  record, 

{a)  Trcby's  Arg.  12.  (A)  Sawy.  Arg.  28. 

I  i  2  that 


484  THE     LAW 

that  the  judgment  of  forfeiture  was  not  given  by  a£l  of 
parliament,  but  by  the  King  and  his  council  in  parliament^ 
fitting  as  2.  judicial  court,  which  frequently  happened  in 
thofe  times :  he  then  ftates  the  cafe  from  the  record  in  ra- 
ther a  different  manner  from  Lord  Coke :  and  his  ftate* 
ment  certainly  (hews  that  the  judgment  was  that  of  a  judi- 
cial court. 

The  folicitor  general  (a)  mentions  a  record  by  which 
it  appears,  that  in  the  15  Ed.  i.  the  franchife  of  the  city 
of  London  was  feized  into  the  King's  hands,  and  John  de 
Briton,  who  was  not  a  freeman,  appointed  cuftos^  which, 
in  the  folicitor's  opinion,  implied  that  the  very  being  of 
the  corporation  was  forfeited  to  the  King,  *'  becaufe,"  fays 
he,  **  they  had  a  power  to  choofe  defeipjis^  by  charter  from 
King  John,  a  citizen  to  be  a  mayor  or  chief  governor,  but 
here  was  another  perfon  appointed  governor  over  them." 

The  city  continued  in  this  ftate  till  the  26  Ed.  r,  when 
the  King,  pro  bono  Jervicio  civitaf  London*  reddit  eis  civi-' 
taf  fuam  LorMon*  habend  di^*  civibus  ad  volunt*  Regis  :  "  fo 
that,''  fays  the  folicitor,  "  both  the  city  and  all  its  fran- 
chifes  were  feized  at  that  time,  for  he  reftored  the  verj 
city  of  London  to  the  citizens  during  his  will  and  pleafure." 

Both  the  folicitor  (b)  and  the  attorney  {c)  ftate  feveral 
other  records  of  fimilar  feizures  and  reftitutions,  from  the 
time  of  Ed.. I,  to  20  R.  2. 

Mr.  Pollexfen,  in  his  argument  for  the  city,  contends, 
that  none  of  tHefe  records  prove  that  the  very  being  of  the 
corporation  was  feized  for  forfeiture ;  but  that  only  fome 
of  the  fubordinaiefranchifes  were  fo  feized  :  he  takes  parti- 
cular notice  of  the  record  in  the  cafe  of  the  mayor  of 
Sandwich,  and  endeavours  to  fhew  that  the  liberty  there 
adjudged  to  be  feized,  was  not  the  being  of  the  corpora- 

(a)  Finch's  Arg,       (b)  Finch's  Arg.  16.       (c)  Sawy.  Arg.37. 

tion 


OF     CORPORATIONS.  485 

tton  of  the  town  of  Sandwich,  but  the  liberty  they  had  in 
Stannore,  or  the  liberty  they  claimed  to  be  impleaded  in 
the  court  of  Shepway  (a)^ 

With  refpe<9:  to  thofe  records  which  relate  to  the  city  of 
London,  he  fays  they  are  fo  far  from  proving  that  the  being 
of  the  corporation  wsisfotfeiudj  that  they  fhew  it  ftiliy«i- 
^edi  for  that  the  feizure  was  afeizure  only  of  the  may- 
oralty, notwithftanding  which  the  citizens  exercifed  all 
their  corporate  rights,  except  that  of  choofing  their  own 
mayor;  and  he  cites  feveral  records  to  fhew,  that  during 
all  the  time  of  the  cuftos,  the  courts  were  regularly  held, 
particularly  the  court  of  huftings,  and  the  court  of  alder* 
men,  in  which  latter  the  cuftos  (at  in  the  room  of  the 
mayor  (i). 

He  contends  likewife,  and  certainly  not  without  rea- 
fon  (0,  that  admiting  thofe  records  to  fliew  the  a£lual  for^ 
feiture  of  the  corporations,  they  were  not  to  be  confidered 
as  authorities  in  a  court  of  law  :  that  they  were  proceed- 
ings in  times  of  great  trouble  and  confufion,  and  were  not 
to  be  taken  as  precedents  when  law  was  better  fettled  and 
underftood.  He  obferves,  likewife  (</),  that  in  point  of 
fa£^,  notwithftanding  all  thofe  feizures,  the  liberties  wer^ 
.confirmed  by  feveral  ftatutes  from  i  H.  4,  to  2  H.  6;  and 
that  from  the  time  of  R.  2,  to  this  quo  warranto  againft 
the  city  of  London,  there  was  not  found  any  inftance  of 
a  feizure  of  liberties  or  franchifes,  nor  of  a  cuftos :  he 
further  obferved,  that  notwithftanding  the  feizures  which 
Jiad  adtually  taken  place,  London,  Briftol,  Gloucefter, 
Cambridge,  and  the  Cinque  Ports,  and  he  might  have  added 
others,  in  all  their  pleadings,  entitled  themfelves  to  be  cor- 
porations by  prefcriptionj  which  is  a  very  ftrong  argument 

(a)  PoUexfen's  Arg.  100.  (b)  Ibid.  101,  107,  loS, 

(0  Ibid.  103,  (</)  Ibid.  104. 

li  3  to 


4S6  THE     LAW 

to  {hew  that  the  eScA  of  the  feizures  was  not  to  deftroy* 
the  corporate  exiftence  (a). 

Mr.  Juftice  Blackftone,  after  ftating,  that  one  of  the 
modes  by  which  a  corporation  may  be  diflblved,  is  by 
forfeiture  of  its  charter,  dirough  negligence  or  abufe  of  its 
franchifes,  adds,  ^  that  the  reguhr  courfe  is  to  bring  an 
information  in  nature  of  a  writ  of  quo  warranto,  to  in* 
quire  by  what  warrant  the  members  now  exercife  their 
corporate  power,  having  forfeited  it  by  fuch  and  fuch  pro- 
ceedings'' (b). 

Were  this  the  real  form  of  the  information,  a  great  deal 
of  difficulty  would  be  removed ;  but  it  muft  be  recoUeded, 
that  thc/orm  both  of  the  original  writ  of  quo  warranto,  and 
of  the  information  in  the  nature  of  it,  is  the  (ame  whether 
the  one  or  the  other  be  brought  for  an  ufurpation  without 
any  original  title,  or  for  a  fubfequent  forfeiture,  when  the 
original  title  is  not  difputed ;  that  the  firft  fimply  calls  upon 
the  defendent  to  ihew  by  what  warrant  he  claims  the  fran- 
chifes in  queftion,  without  alleging  any  ufurpation  or  for- 
feiture; and  that  the  latter  exprefsly  alleges  an  ufurpation 
without  any  warrant  or  royal  grant,  and  confequently  does 
not  ftate  any  fubfequent  forfeiture  (c). 

Though  the  real  intention  of  this  proceeding  may  be, 
not  to  deny  that  an  original  title  once  exifted,  but  to  infift 
on  its  being  now  at  an  end  by  the  mifcondud  of  the  de- 
fendant ;  yet,  in  general,  the  form  will  not  involve  any 
abfurdity ;  becaufe,  though  the-  plea  fliew  a  good  original 
title,  that  is  no  more  than  a  falfification,  to  a  certain  ex- 
tent, of  the  allegation  of  the  attorney  general;  who  may, 
without  inconfiftcncy,  reply,  that  notwithftanding  the  title 
pleaded,  the  defendant  ought  not  to  continue  to  exercife 


(a)  Ibid.  106.  (b)  1  Bl.  Com.  4«5« 

(r)  Vid.  ante,  p.  395,  403,  404. 


the 


OF     CORPORATIONS.  487 

the  franchife,  becaufe  at  fuch  a  time,  previous  to  the  com- 
mencement of  the  ufurpation  mentioned  in  the  information, 
he  did  fuch  and  fuch  afts,  by  which  he  has  forfeited  his  right. 

These  obfervations  apply  equally  to  an  information 
filed  againft  an  individual,  or  againft  a  corporation  by  the 
corporate  name,  to  enforce  the  forfeiture  of  any  ordinary 
franchife ;  but  the  great  queftion  has  been  with  refpedl  to 
the  name  in  which  it  (hall  be  brought,  when  it  is  intended 
to  enforce  the  forfeiture  of  the  corporate  exiftence,  or,  in 
the  language  of  the  cafe  of  the  quo  warranto  againft  the 
city  of  London,  "  the  franchife  of  being  a  corporation.'* 

Where  it  is  intended  to  impeach  the  original  authority 
of  anumber  of  perfons  to  a£t  as  a  corporation,  the  infor- 
mation ought  moft  certainly  to  be,  and  in  fad,  has  always 
been  agaiilft  the  individuals,  by  their  individual  names,  and 
not  by  the  corporate  name  under  which  they  a£i. 

The  information  againft  the  city  of  London,  by  which 
It  was  not  intended  to  impeach  the  original  title,  but  to  en- 
force a  forfeiture  of  the  corporate  exiftence,  was  in  theie 
terms, — ^^  that  the  mayor  and  commonalty  and  citizens  of 
the  city  of  London,  for  the  fpace  of  one  month  now  laft  paft 
and  more,  had  ufed,  &c.  without  any  warrant  or  royal  grant 
within  the  city  of  London,  &c.  the  feveral  liberties,  privi- 
leges, and  franchifes  following,  viz.  tabe  of  themfelves  one 
body  corporate  and  politic,  in  deed,  fa£l,  and  name,  by  the 
name  of  mayor  and  commonalty  and  citissens  of  the  city  of 
London,  &c." 

The  city  appeared  by  their  attorney,  and  pleaded  a 
perfeil  title  j  the  attorney  general  replied,  and  affigned  the 
two  caufes  of  forfeiture  before  mentioned  (a) :  after  fome 
further  pleadings,  the  cafe  came  before  the  court  on  demurrer; 
and  among  other  queftions  agitated  at  the  bar,  this  produced 
a  confiderable  degree  of  difcuffion,  "whether  the  informa- 

(a)  Ante,  p.  478, 

I  i  4  tion 


4S8  THE     LAW 

tion  was  well  brought  ag^iinft  the  Corporation,  by  the  corpo- 
rate name,  or  whether  it  ought  not  to  have  been  brought 
againft  the  individual  members,  by  their  proper  names?'' 

The  great  objeftion  to  this  form  of  the  information  was 
thif,  that  it  at  once  admitted  the  defendants  to  be  a  corpo- 
ration, and  yet  denied  their  authority  to  ail  in  that  character* 
Sir  George  Treby  not  only  argued  fully  on  this  ap- 
parent repugnancy,  but  aflerted,  that  all  the  precedents 
that  could  be  found  were  againft  this  form:  he  (aid  there 
never  was  but  one  inftance  of  a  printed  precedent  of  a  quo 
WARRANTO,  brought  to  impeach  the  being  of  a  corpo- 
ration, and  that  that  was  againft  the  individuals  by  name  ; 
it  was  againft  Heldon  and  other  burgefles  of  Helmefley, 
for  ufurping  to  be  a  corporation  by  thg  name  of  the  burgejfis 
fffHelmeJley  (a) :  to  ftrengthen  the  inference  he  drew  from 
this,  he  cited  feveral  other  inftances  of  a  fimilar  kind,  which 
were  not  in  print  {h). 

The  attorney  general  contended,  that  thefe  precedents, 
though  they  proved  that  the  fuit  might  be  brought  againft 
the  individuals  by  name,  or  againft  fome^^articular  mem* 
bers  by  name,  and  againft  the  reft  by  w^e^rds  of  general  de- 
fcription,  as  other  freemen^  other  burgejfes^  fcfc.  yet  they  by 
no  means  proved,  that  the  King  had  i/ot  a  further  eIe£tion 
to  bring  his  fuit  for  queftioning  theydorporation,  either  by 
the  proper  name  of  incorporation  /Without  naming  particu- 
lar perfons,  or  by  fome  other  general  name,*  which  fuffici- 
ently  defcribed  the  defendants.  Yhat  the  fuit  might  be  fo 
brought,  he  argued  from  the  analogy  of  indifhnents 
againft  a  parifh,  a  hundred,  or  a  county^  for  not  repairing 
bridges,  highways,  &c.  which  might  either  ^againft  fome 
particular  perfons  by  name  and  other  inhabitant^  or  againft 
the  inhabitants  generally  without  naming  any  one  in  par- 

{a)  Co.  Ent.  527.    Ticby's  Arg.  z5.  (*)  Ibid.  i7»  a?. 

ticulars 


OF    CORPORATIONS.  48^9 

ticular  5  and  he  contended  that  there  was  no  repugnancy 
in  the  prefent  infonnation;  for  that  by  being  brought 
againft  the  defendants,  it  was  not  admitted  that  they  were 
a  corporation,  but  that  it  was  only  intended  to  defcribe 
them  by  a  name  by  which  they  were  generally  known  {a). 

It  may  be  obferved,  however,  that  he  failed  in  (hewing 
a  complete  analogy  between  the  two  cafes ;  becaufe  he 
did  not  prove  that  the  ri^ht  of  being  a  parifh,  a  hundred, 
or  a  county,  was  ever  called  in  queftion  by  an  indidlment 

for  not  repairing  a  highway,  &c. And  that  part 

of  his  argument  where  he  fays  the  queftion  will  be,  *'  what 
a6ts  or  what  omifiions  of  the  natural  ^^vions  will  afie6l  this 
right,  wherein  all  the  members  of  the  body  have  an  in- 
tereft"  {h\  feems  to  be  the  ftrongeft  argument  againft  the 
form  of  the  information  in  queftion.  It  is  in  eiFedt  admit- 
ting that  an  information  brought  to  deftroy  the  corporate 
right  for  a  forfeiture  incurred  ought  to  be  againft  the  in* 
dividuals.  It  is  a  right  exercifed  by  them:  it  is  a  right 
forfeited  by  their  afl:  or  omi/Iion :  againft  them,  therefore,  ac« 
cording  to  his  own  reafoning,  ought  the  fuit  to  be  brqught. 

But  though  there  may  be  fome  degree  of  logical  or  me- 
taphyfical  abfurdity  in  an  information  brought  in  the  form 
of  that  againft  the  city  of  London,  yet  if,  in  point  of  fa<Sl, 
it  were  the  acknowledged  pra£Uce  to  bring  informations  in 
that  form,  the  apparent  repugnancy  does  not  feem  a  good 
legal  obj  e£tioii  to  them  • 

The  attorney  general  certainly  produced  feveral  in- 
ftances  of  fuch  informations  (^),  but  in  all  of  them,  except 
one,  judgment  appears  to  have  been  given  againft  the  de- 
fendants either  for  want  of  an  appearance,  or  for  want  of 
an  anfwer — l^hat  in  which  the  defendants  pleaded  was  the 
cafe  of  New  Malton  in  the  time  of  James  theiirft. 

(tf)  Sawy.  Arg.  4,  5.  {b)  Ibid.  8.         (f)  Sawy,  Arg.  6,  31. 

"  This 


\ 


"1 


^^O  .  T  H  E    L  A  W 

^  This  cafe,**  fays  the  attorney  (a)y  "  is  an  exprefs 
authority,  that  this  liberty  may  be  feized  by  judgment 
in  a  quo  warranto  againft  the  inhabitants  of  a  town  by 
dieir  corporate  name.  It  is  brought  againft  the  bailiffs 
and  burgeiles  of  New  Malton,  and  the  form  of  die  infor- 
mation is  the  very  fame  with  this  againft  the  city  of 
London.*' 

^  They  plead  by  their  corporate  name,  and  entitle  them- 
felves  to  the  liberty  by  prefcription ;  after  verdid,  judg- 
ment is  given  againft  them  by  their  corporate  name,  that 
the  liberty  be  taken  and  feized  into  die  King's  hands ;  and 
which  is  more,  the  capiantur  pro  fine  is  entered  againft  them 
by  the  corporate  name  of  Battivi  et  BurgenfeSy  though  the 
corporation  by  the  feizure  was  difiblved;  and  the  reafon  no 
doubt  was,  that  that  general  name  was  a  fufficient  defcrip- 
lion  of  the  perfons  who  were  liable  to  die  fine  for  their 
itfurpation." 

Mr.  PoUexfen,  in  his  argument  for  the  city  {h)y  ac- 
knowledges, that  there  are  precedents  in  the  crown  office 
of  QUO  WARRANTOS  brought  againft  corporations  in  the 
£ime  form  as  the  prefent,  for  ufurping  to  be  a  corporation, 
and  for  claiming,  feveral  other  liberties ;  and  he  mentions 
eleven  from  the  a  £1.  to  the  8  Car.  i  inclufive,  and  fays  it 
is  probable  there  may  be  more ;  but  contends  that  if  they 
be  of  any  authority,  they  zr^for  him,  and  not  againft  him : 
1,  Becaufe,  being  for  claiming  other  liberties,  as  well  as  to 
he  a  corporation,  and  being  good  as  to  the  former,  though 
infufficient  as  to  the  latter,  they  muft  be  proceeded  upon, 
if  the  attorney  general  pleife.  a.  In  all  of  thefe,  either  a 
plea  is  put  in,  and  confefled,  or  a  noliprofequi  is  entered,  and 
there  is  no  judgment  againft  the  corporadon,  perhaps  for 
this  very  reafon,  that  as  to  the  being  a  corporation,  the  in- 

ia)  Ibid.  31,  (b)  Pollcxfen,  Arg.  6S. 

formations 


OP    CORPORATIONS.  491 

formations  were  infufficient.  But  if  any  could  be  found 
where  the  only  ufurpation  charged,  was  that  of  claiming  to 
be  a  corporation,  or  where,  though  other  things  were  charg- 
ed, that  was  the  only  thing  for  which  judgment  was  given 
for  the  crown,  then,  he  fays,  fuch  a  cafe  would  be  like  the 

prefent.- "  One  there  is  found,"  he  adds,  "  and  that 

is  the  cafe  of  New  Malton."  But,  he  fays,  there  is  no 
mention  of  it  in  any  book  or  report  as  far  as  he  could 
learn;  fo  that  it  p^Sedfub Jileniio i  that  he  had  made  in- 
quiry concerning  this  borough ;  that  it  was  a  fmall  place 
within  the  manor  of  the  anceftors  of  my  Lord  Eure;  that 
it  anciently  fent  members  to  parliament,  but  that  from  the 
time  of  Edward  the  firft  to  the  beginning  of  the  long  par- 
liament in  1640,  it  had  fent  none ;  that  on  a  petition,  a  writ 
was  then  ordered,  and  the  inhabitants  had  ever  fince  fent 
burgelles ;  that  my  Lord  Eure,  being  lord  of  the  manor, 
and  oiFended  with  them,  profecuted  this  quo  warranto,  and 
they  having  neither  lands,  revenues,  nor  eftates,  to  defend 
themfelves,  he  eafily  prevailed,  they  having  in  truth  never 
been  incorporated,  nor  having  any  charter. 

Whatever  may  be  the  properyirw  of  an  information 
of  this  kind,  it  muft  be  filed  in  the  name,  and  at  the  fuit  of 
the  attorney  general  -,  for  it  is  not  within  the  meaning  of 
the  adl  of  Queen  Anne  (<?). 

The  next  point  to  be  confidered  is  the  efkSt  of  the 
judgment  againfl  the  defendants  in  the  different  ftages  of 
the  proceeding. 

It  has  been  flated,  that  if  the  defendant  to  a  writ  of  quo 
warranto  did  not  appear  on  the  firft  day  of  the  Eyre,  &c, 
judgment  was  given  that  the  franchife  fhould  befeized  into 
the  King's  hands  in  the  name  of  a  diftrefs  (b).  Lord  Coke, 

(a)  Rex  V.  corporation  of  Cannartben,  %  Bur.  869. 
{b)  Vid.  ante,  p.  396, 

in 


49^  THE      LAW 

in  his  comment  on  that  part  of  the  ftatute  of  Gloucefter^ 
which  gives  the  venire  facias  commanding  the  fheriiF  to 
fummon  the  defendant  to  appear  on  the  fourth  day,  and,  on 
his  default,  ena<^s,  that  it  ihall  be  done  as  in  the  circuit  of 
the  Eyre,  fays,  that  the  confequence  of  the  defendant's  not 
coming  to  replevy  the  franchife  during  the  fitting  of  the 
Eyre,  was,  that  he  loft  it  for  ever;  from  whence  he  con- 
eludes,  that  after  the  proceedings  in  Eyre  were  difcon* 
tinued,  the  fame  confequence  followed  from  the  defendant's 
not  coming  within  the  term  to  replevy  in  the  King's 
Bench  (« ). — This  opinion  he  founds,  principally,  on  the 
authority  of  a  cafe  in  the  year  books  in  the  time  of 
Ed.  4(3))  which,  in  confequence  of  his  fandion,  was,  till 
the  cafe  of  the  King  and  Amery,  confidered  as  having 
eftabliibed  the  law  on  this  point.  If  the  confequence 

of  not  replevying  within  the  term  was  in  ordinary  cafes, 
the  lofs  of  the  franchife  for  ever,  it  muft,  in  the  cafe  of  a 
quo  warranto  brought  to  enforce  a  forfeiture  of  the  coi^ 
porate  exiftence,  have  been  the  difTolution  of  the  corpo- 
ration. 

The  cafe  of  the  King  and  Amery  {c\  was  an  informa- 
tion in  the  nature  of  quo  warranto  filed  againfl  the  defen- 
dant for  exercifmg  the  office  of  an  alderman  of  the  city  of 
Chefter.  The  defendant  pleaded  letters  patent  of  Charles 
the  fecond  granted  on  the  4th  of  February,  in  the  37th  year 
of  his  reign,  by  which  the  citizens  and  inhabitants  of 
Chefter  were  incorporated,  and  which  was  duly  accepted ; 
and  then  regularly  deduced  a  title  under  it  to  the  office  of 
alderman. 

The  profecutor  replied,  that  Charles  the  fecond  did  not 
grant;  that  the  letters  patent  were  not  accepted  s   that  the 

(tf)  a  Inft.  181.        {b)  15  Ed.  4, 7,  b.        (f)  1  Tenn  Rep.  515. 

defendant 


OF    CORPORATIONS.  493 

defendant  was  not  duly  eleded,  and  that  he  was  not  ad- 
mitted.   The  profecutor  then  added  two  new  replications; 
in  the  firft  of  which  he  ftated,  that  Charles  the  fecond  by 
the  fame  letters  patent,  mentioned  in  the  defendant's  plea, 
referved  to  himfelf  and  his  fucceflbrs,  a  power  of  removing 
at  their  free  will  and  plcafure,  without  any  caufe,  by  order 
in  privy  council  made,  and  under  the  feal  of  the  privy 
council,  any  one  or  more  of  the  aldermen,  &c.  the  order  to 
be  duly  fignified  to  the  perfon  or  perfons  againft  whom  it 
was  made,  and  who,  in  confequence  of  fuch  fignification, 
(hould  be  to  all  intents  and  purpofes  aftually  amoved  from 
their  refpeftive  offices  without  further  procefs ;  and  diredl- 
ed  that  in  every  fuch  cafe  other  fit  perfon  or  perfons^  within  a 
convenient  time  after  fuch  amotion  or  amotions^  Jhould  be  chofen^ 
fworn  and  appointed  into  the  office  or  offices  of  any  fuch 
perfon  or  perfons  fo  amoved,  in  fuch  manner  as  by  the  faid 
letters  patent  was  before  direfted.      The  replication  then 
ftated,  that  after  the  granting  of  the  faid  letters  patent, 
James  the  fecond,  on  the  1 2th  of  Auguft  1688,  in  execu- 
tion of  the  power  referved,  by  order  in  privy  council  duly 
made,  removed  all  the  perfons  who  were  then  aldermen, 
&c.  that*  this  order  was  duly  fignifted  to  them  >  by  which 
the  power  as  to  the  eledlion  of  aldermen  ceafed,  and  was 
determined. 

The  fecond  replication  ftated  a  charter  of  incorporation 
granted  to  the  citizens  and  commonalty  of  Chefter,  by 
Hen.  7,  in  the  21ft  year  of  his  reign,  which  was  duly  ac- 
cepted, and  a  charter  of  confifmation  in  the  16th  of  El. 
which  was  alfo  accepted  ;  that  both  thefe  charters  were 
in  full  force,  before,  and  until,  and  at  the  time  of  the 
judgment  therein  after  next  mentioned.  It  then  ftated, 
that  in  Trinity  Term,  in  the  35th  year  of  the  reign 
of  Charles  the  fecond.  Sir  Robert  Sawyer,  then  attorney 

general, 


^^^  THE  LAW 

general,  filed  an  information  in  the  nature  of  quo  warranto 
againft  the  mayor  and  citizens,  by  the  name  of  mayor  and 
atizensy  calling  upon  them  to  (hew  by  what  authority  they 
claimed,  among  other  things  to  be  in  themfelves  one  bodypo^ 
litic  and  corporatey  by  the  name  of  mayor  and  citizens  of 
the  city  of  Chefter.— It  then  ftated,  that  fuch  proceedings 
were  thereupon  had,  that  in  Hilary  Term  35  and  36  of 
Charles  the  fecond,y0r^£/tftf// of  the  faid  mayor  and  citi- 
zens in  not  appearing  in  the  faid  court  of  the  laid  Lord  the 
late  King,  before  the  King  himfelf,  to  anfwer  to  the  (aid 
Lord  the  late  King  touching  and  concerning  the  premifes, 
it  was  then  and  there  by  the  fame  court  of  the  faid  Lord 
the  late  King,  before  the  King  himfelf,  confidered  that  the 
liberties,  privileges^  and  franchifes,  in  the  faid  information 
above  fpecified,  fhould  be  feized  into  the  hands  of  the  faid 
Lord  the  late  King,  until  the  /aid  court  Jhould  further 

erder. 

'  This  replication  then  ftated,  that  after  this  judgment^ 
and  after  the  charter  of  Charles  the  fecond,  mentioned  in 
the  defendant's  plea,  James  the  fecond  made  an  order  of 
removal  as  ftated  in  the  firft  replication.  It  then  further 
ftated,  that  after  this  removal  James  granted  a  charter  of 
reftoration,  dated  October  26,  1688,  by  which  he  pardoned 
the  judgment  above  mentioned,  and  reftored  to  the  mayor 
and  citizens  of  the  old  corporation,  their  former  liberties  ; 
that  this  charter  was  duly  accepted,  and  that  thereby  the 
charter  of  Charles  the  fecond,  in  the  defendant's  plea 
mentioned,  became  void. 

The  defendant  rejoined,  that  the  order  in  council  for  re- 
moval, &c.  was  not  duly  iigniiied ;  and  that  fuch  further 
proceedings  were  had  in  the  information  mentioned  in  the 
fecond  replication,  that  in  Trinity  Term,  in  36  Charles  2, 
judgment  was  given,  that  the  liberties  in  the  information 

3  fpecified 


OF    CORPORATIONS.  495 

{ped&edjbould  be  feixed  into  the  hands  of  the  faid  Lord  the 
Kingj  and  that  the  faid  mayor  and  citizens  fiould  be  ex^ 
eluded  and  amoved  therefrom  \  but  that  the  record  of  this 
judgment  was  loft. 

Thb  profecutor,  in  his  furrej  cinder,  denied  that  fuch 
final  judgment  had  ever  been  given. 

The  jury  found  by  their  verdidl  that  Charles  the  fecond, 
by  his  charter,  did  grant  as  the  defendant  alleged  in  his 
plea ;  that  the  charter  was  accepted  by  the  citizens  and  in- 
habitants }  that  the  defendant  was  duly  eleded  and  admitted 
under  the  charter ;  that  the  order  of  removal  was  duly  fig* 
nified,  and  that  there  was  no  final  judgment  in  the  infor- 
mation. 

iNconiequenceof  this  verdidl,  an  application  was  made 
on  behalf  of  the  defendant,  that  the  poftea  might  be  deli- 
vered to  him,  in  order  to  enter  up  judgment  upon  it. 

After  very  able  arguments  on  both  fides,  Mr.  J. 
Afhhurft  delivered  the  opinion  of  the  court.  After  ftating 
the  pleadings,  he  faid  three  queftions  arofe  upon  them. 
I.  Whether  Charles  the  fecond,  at  the  time  of  granting  the 
charter  mentioned  in  the  plea,  had  the  power  of  creating 
a  new  corporation  in  the  city  of  Chefter.  2.  Whether,  if 
he  had,  the  charter  itfelf  was  a  good  one^  and  what  was  the 
effefl:  of  the  amotion  of  all  the  members  by  James  the 
fecond;  and  3.  What  was  the  efFefl:  of  the  charter  of 
reftitution. 

The  firft  queftion,  he  faid,  depended  on  the  effefl  of 
the  judgment  for  default  of  appearance,  which  clearly  re- 
mained in  force,  when  the  charter  was  granted,  under 
which  the  defendant  claimed :  and  on  the  authority  of  the 
cafe  1 5  Ed.  4,  fupported  by  the  fanftion  given  to  it  by  Lord 
Coke,  he  faid,  the  court  were  clearly  of  opinion,  that  on 
the  defendant's  not  coming  in  during  the  term  in  which  the 

venire 


496  THE     LAW 

ventre  was  returnable,  or  at  moft  during  the  next  ternt^ 
and  replevying  his  franchife,  it  was  loft  for  ever ;  and  that 
therefore,  as  the  defendants  had  not  in  the  prefent  cafe  come 
in  and  replevied  in  time,  the  corporation  was  by  the  judge- 
ment queufque  diflblved,  and  that  confequently  Charles  the 
fecond  had  the  power  of  creating  a  new  corporation  in  the 
city  of  Chefter.  • 

On  the  fecond  queftion,  he  faid,  the  court  were  of  opi- 
nion, that  the  charter  of  Charles  the  fecond  was  good  i  the 
obje£lion  to  it  had  been,  that  it  contained  a  ppwer  of  re- 
moving allxht  members  at  the  King's  difcretion,  and  was 
therefore  void :  but  the  true  conftrudion  of  that  power  of 
amotion  was,  that  it  muft  be  confined  to  fuch  a  limited 
number,  that  the  remaining  members  might  be  able  to 
ele<Sl  others  according  to  the  proviiions  in  the  former  part 
of  the  charter :  the  amotion  of  all  the  members  was  there- 
fore illegal  and  void.    It  followed  from  thence,  that. 

On  the  third  queftion  the  court  were  of  opinion  that 
the  charter  of  reftitution  was  void ;  for  though  it  was  com- 
petent to  the  crown  to  pardon  a  forfeiture,  and  to  grant 
reftitution,  that  could  not  be  done  where  it  would  afFe6l 
legal  rights  properly  vefted  in  other  perfons,  which  was  the 
cafe  here ;  Charles  the  fecond,  while  the  forfeiture  exifted, 
had  incorporated  a  new  body  of  men  in  the  town,  and  in- 
vefted  them  with  new  rights ;  after  which  it  was  not  in  his 
power,  and  confequently  not  in  the  power  of  his  fucceflbr, 
to  defeat  their  intereft  by  pardoning  the  old  corporation ; 
and  there  could  not  exift  in  the  fame  place  two  independent 
corporations  with  general  powers  of  government. 

On  this  judgment,  a  writ  of  error  was  brought  In  the 
Houfe  of  Lords  ;  and  as  the  opinion  of  the  court  of  King's 
Bench  was  profefTedly  founded  on  the  authority  of  the  year 
book  in  the  1 5  Ed.  4,  the  counfel  for  the  profecutor  pro- 

5  cured 


Of  corporations.  497 

tufed  a  fearch  to  be  made  for  the  record  of  that  cafe  in  the 
Crown  Office ;  the  only  cafe  of  quo  warranto  which 
was  found  from  Hilary  the  14  Ed.  4,  to  Hilary  the  15  Ed.  4, 
both  inclufive,  was,  that  of  the  King  and  Quadryng ;  and 
from  all  the  circumftanceSy  there  is  no  doubt  of  this  being 
the  cafe  in  queftion. 

By  thecontrolment  roll  of  the  procefs  in  this  caufe,  it 
appears,  that  in  Michaelmas  14  Ed.  4,  the  fheriiF  of  Lin- 
colnihire  was  commanded  to  fummon  William  Quadryng 
to  be  before  the  King  himfelf,  in  the  oflaves  of  St.  Hilary, 
to  /hew  by  what  warrant  he  claimed  to  have  a  market 
every  week  on  -Saturday,  at  the  town  of  Burgh,  in  le 
Merflie,  in  that  county,  without  the  licence  of  the  King  or 
his  predeceflbrs  Kings  of  England:  that  on  the  day  of  the 
return  of  the  ^rit,  the  fheriff  returned,  that  he  had  fum- 
moned  the  defendant ;  that  becaufe  the  court  was  not  4d- 
vifed  concernfaig  the  procefs  which  ought  to  be  further 
made,  a  day  was  given  to  the  attorney  general  and  the  de- 
fendant, until  in  fifteen  days  from  the  day  of  Eafter ;  that 
on  that  day  the  defendant  not.  appearing,  a  writ  of  venire 
facial  was  awarded  to  anfwer  on  the  o6tave  of  Trinity  5 
then  an  alias  venire  facias  j  then  a  writ  of  dijiringas^  which, 
was  continued  from  term  to  term,  by  alias  and  pluriesy  till 
the  end  of  the  reign  of  Edward  the  fourth  ^  and  that  in  the 
firft  of  Richard  the  third,  a  new  writ  of  venire  facias  was 
awarded,  which  was  renewed  from  teiln  to  term  till 
Mich.  2  R.  3,  when  the  (heriff  returned,  that  the  defen- 
dant was  dead. 

By  the  controlment  roll  of  the  judgmenty  it  appears,  that 
on  the  default  of  the  defendant  in  Trinity  )  j  Ed.  4,  a  day 
was  given  to  the  parties  to  the  odave  of  St.  Michael,  to 
hear  the  judgment  of  the  court ;  at  which  day  judgment  is 
given,  that  the  market  aforefaid  he  taken  andfeized  into  the 

Vol.  II.  V        Kk  hands 


498  THE     LAW 

hanJs  of  our  Lord  the  King,  quoufque,  &c.  The  fheriff  is 
commanded  to  feize  the  market  according  to  the  form  of  the 
judgment  aforefaidy  i^c.  and  to  (hew  in  the  o£bve  of  Hii^r/ 
how  he  fhould  have  executed  the  writ;  at  which  day  he 
returns  that  by  virtue  of  the  writ  to  him  dire£ted,  he  had 
feized  the  market  into  the  hands  of  the  Lord  the  King,  ac^ 
cording  to  the  form  of  the  aforefaidwrit^ 

The  entry  roll  ftates  the  proceedings  of  the  court  at 
more  length,  agreeing  in  fubftance  with  the  roll  of  the 
judgment,  and  concluding  with  the  (herifF's  return  to  the 
writ  of  feizure  quoufque  {a). 

The  report  of  die  cafe  in  the  year  book  is  in  thefe 
terms : 

<*  The  King  brought  his  writ  of  quo  warranto  againft  a 
man  to  (hew  quo  warranto  he  claimed  to  have  a  market  in 
C.  in  prejudicium,  &c«  The  writ  returnable  of  Eajler 
Term  laft  paft,  at  which  day  the  defendant  did  not  appear, 
on  which  there  ifiiied  a  venire  facias  againft  the  fame  de- 
fendant, returnable  in  Trinity  Term,  at  which  time  alio 
the  defendant  did  not  appear.  And  now,  in  the  Exchequer 
Chamber,  before  thejuftices  of  both  benches,  the  queftion 
was  moved,  whether  the  defendant  ^o\AA  forfeit  his  market 
or  not :  and  the  ftatute  of  quo  warranto  primo  was  looked 
into  upon  this  matter.'* 

Tremayle.  "  It  feems  to  me,  that  he  (hould  forfeit 
his  market,  for  the  ftatute  provides,  that  if  the  defendant 
come  not  at  the  return  of  the  venire  facias,  then  it  may  be 
done,  as  it  might  be  in  the  eyre,  and  I  fay,  that  before 
juftices  in  eyre,  if  the  party  who  hath  the  franchife  come 
not,  then  the  franchife  fhall  be  feized  into  the  King's  hands 
nomine  diJiri6lionii  \  and  if  the  party  who  ought  to  replevy 
the  franchife  come  not  during  the  eyre,  in  fuch  county,  he 

(fl)  Rex  V.  Ameiy,  397— 399- 

ought 


OF     CORPORATIONS.  499 

ought  to  forfeit  the  franchifeyjr  ever^  and  fo  it  happened  in 
the  eyre  of  Kent: — ^fuch  a  franchife  was  feized,  nomine  dif^ 
triSiionis ;  and  therefore  Herby,  then  juftice  in  eyre,  laid,— • 
Let  the  party  come  fitting  the  eyre,  or  otherwifc  he  has 
loft  his  franchife  for  ever.  So  here,  when  he  had  day  the 
laft  term  by  the  venire  facias,  which  was  the  loft  procefs  in 
fuch  aifion,  and  the  party  did  not  come,  all  this  term  it 
fliall  be  in  the  King's  hands :  hut  neverthelefs  the  party  Jhall 
have  replevin  ofit^  when  he  conusJ** 

CoLtow.  "  /think  otherwife,  for  often  in  our  law,  if 
a  man  make  default  on  certain  procefs,  the  plaintiff  {hall 
have  his  recovery ;  as  if  a  man  be  outlawed  in  a  perfonal 
ai^ion,  on  which  the  defendant  purchafes  his  charter  6[ 
pardon,  and  has  fcire  facias  againft  the  party,  to  fhew  why 
his  charter  fhould  not  be  allowed ;  if  the  iherifF  return  the 
fcire  facias,  and  he  come  not,  the  charter  fhall  be  allowed 
for  ever,  and  fliall  not  be  allowed,  falvo  jure  petentis ;  for 
by  common  intendment,  when  he  is  fummoned,  and  comes 
not,  he  does  not  mean  to  purfue  his  writ.  And  if  the 
IherifF  return  the  writ,  non  eft  inventus^  vel  nil  hahet^  he  fliall 
have  Tijicut  alias  \  and  if  he  return  nil  habetj  or  non  eft  in^ 
ventusy  the  charter  fliall  be  allowed,  for  the  procefs  is  deter^ 
fnined  by  courfe  of  law.  So  in  the  cafe  here,  he  has  no  other 
procefs  after  the  venirefacias  returned^  wherefore,  &c." 

Finch  AM,  "  To  the  fame  purpofe,  and  that  the  fran- 
chife fliall  be  forfeited  for  ever ;  for  when  the  King  fues 
againft  the  defendant,  quo  warranto^  &c^  he  takes  this  fuit, 
to  the  end,  that  if  the  defendant  fliew  good  title  in  himfelf, 
he  fliould  hold  his  market ;  and  if  he  cannot  fliew  good 
title,  then  the  King  might  feize  it ;  and  when  it  is  feized, 
then  no  market  can  be  held  thereafter  \  and  if  the  party 
might  then  have  his  replevin,  the  King'^Vould  have  no  efFetSl 
of  this  fuit,  and  the  party  has  loft  his  market,  by  his  own 

K  k  2  laches. 


500  THE     LAW 

laches,  and  this  is  not  againft  reaibn,  as  if  the  King  grant 
me  certain  lands  by  letters  patent,  which  he  hath  before 
granted  by  letters  patent  to  another,  and  I  have  a  fcire 
facias  againft  the  firft  grantee,  to  ihew  why  his  letters 
patent  fhould  not  be  repealed ;  if  he  make  default  at  the 
alias  zndpluries^  the  letters  patent  of  the  firft  grantee  fhall 
be  made  void,  and  annulled,  by  reaibn  of  his  own  laches* 
So  here^  becaufe  the  defendant  hath  furceafed  his  time,  there 
Is  reafon  that  he  fhould  lofe  his  market." 

Catssby.  "  At  common  law  before  the  ftatute  of 
non-claim^  if  the  tenant  in  a  precipe  quod  reddaty  had  made 
de&ult,  at  the  return  of  the  grand  cape^  and  did  not  come 
within  forty  days  after,  he  never  could  wage  his  law, 
inafmuch  as  the  land  was  taken  into  the  King's  hands,  but 
the  party  might  recover  the  land  ftill,  but  now  the  ftatute 
hath  taken  away  this.  But  in  the  cafe  at  bar,  the  common 
}aw  was  before  juftices  in  eyre,  that  \i  he  who  had  fuch 
franchife,  did  not  come  before  the  juftices  during  the  eyre^ 
then  the  franchife  ftiould  be  forfeited  \  and  now  the  ftatuto 
is,  that  after  the  venire  facias^  if  the  defendant  make  de- 
iault,  it  (hall  be  done  as  it  was  before  the  juftices  in  eyre  ; 
therefore,  it  behoveth,  that  he  now  forfeit  his  franchife  by 
the  ftatute"  {a). 

Nele.  "  I  think  otherwife ;  and  as  to  the  cafe  put  by 
Collow  of  t\it  fcire  facias^  upon  a  charter  of  pardon,  I 
agree,  that  the  charter  fliall  be  allowed,  if  he  (the  plaintiff 
in  the  aftion)  do  not  appear  at  all  j  for  otherwife  his  (the  de- 
fendant's) body  fliould  be  imprifoned  for  ever,  which  would 
be  a  great  mifchief;  but  it  is  otherwife  here,  for  none 
of  the  parties  is  in  fuch  mifchief;  and  fo  it  would  he  again/l 
reafon^  that  when  a  man  has  a  title  to  have  any  things  be 
Jhottld forfeit  it  for  ^ctver^  for  fuch  a  Jhort  delay  \  wherefore  it 

(«)  Theft  four  fpeakers  were  not  now  judges. 

is 

I 


OF     CORPORATIONS.  5OI 

1 

is  reafonabley  that  the  franchife  Jhall  he  fetzed^  and  that  the 
party  may  replevy  when  he  willfue  it  J* 

Littleton.  "  I  think  otherwife ;  for  at  the  common 
law,  before  the  juftices  in  eyre,  if  the  party  was  funa.- 
moned,  and  came  not  during  the  eyre,  he  (hall  forfeit  his 
franchife  for  ever ;  therefore,  and  the  rather  fince  the  fta- 
tute  gives  a  longer  procefs,  and  ncverthelefs  he  makes  de- 
fault, there  is  the  greateft  reafon  that  he  fhould  forfeit  for 


ever." 


Nedham.  **  I  think  otherwife;  and  granting  that  the 
law  was  before  juftices  in  eyre,  that  if  the  party  came  not, 
fitting  the  eyre,  he  fhould  forfeit  his  franchife  ;  ftill  I  fay, 
be  ought  not  to  forfeit  it  in  this  cafe ;  for  in  the  fame 
manner  that  he  might  come,  fitting  the  eyre,  to  Qiew  by 
what  authority  he  claimed  to  have  the  franchife ;  the  fame 
form  is  to  be  obfexved  before  juftices  of  the  King's  Bench, 
and  the  King's  Bench  at  all  times  continues;  and  there*** 
fore  at  all  times  he  may  come  and  replevy  his  franchife  $ 
and  therefore  the  market  fhall  not  be  forfeited,  but  ihall  be 
feized,  as  Neale  has  faid." 

Billing.  "  If  the  market  fliould  not  be  forfeited,  the 
King  cannot  have  any  efFeft  of  his  fuit,  as  Fincham  hath 
faid;  and  therefore  what  ihall  the  judgment  be?  (hall  it 
be,  that  the  market  be  feized  into  the  King's  hands?  or, 
that  the  market  be  ouftcd,  &c  ?'' 

Philpot  {a).  "  The  judgment  cannot  be  given,  that 
the  market  be  feized;  for  when  it  is  in  the  King's  hands, 
it  (hall  not  be  held  as  a  market ;  whe|refore  tlie  j  udgment 
ought  to  be,  that  the  market  (liall  be  oufted,  ice.'' 

Brian.  ^'  The  judgment  (hall  be  givefi,  that  the 
piarket  (hall  be  feized,  &c.  and  that  (hall  enure  by  way  of 

(a)  Thl$  fpeaker  was  not  a  judge. 

Kk  3  extin- 


502  THE    LAW 

extinguifhment;  as  if  I  grant  to  the  King  a  market,  which 
I  have  of  his  gift,  this  grant  is  good,  and  (hall  enure  by 
way  of  extinguiChmentj  and  as  to  what  Nedham  has  faid, 
that  the  King's  Bench  always  continues,  I  agree  to  fome 
intents,  but  not  to  this ;  for  now  here  the  King's  Bench 
ihall  be  taken,  as  for  the  one  term,  in  which  the  venire  fa^ 
cias  was  returned,  and  not  otherwife*" 

Billing.  "  If  the  party  have  continued  this  market 
by  wrong,  and  by  no  title,  as  by  grant  of  the  King,  or 
other  manner,  then  the  judgment  fhall  be  given,  that  the 
market  be  oufted  i  but  if  the  King,  or  his  anceftors,  have 
granted  the  market  to  the  defendant,  and  he  has  mif\x{tA  it, 
or  not  ufed  it,  the  judgment  fhall  be,  that  the  market  fhall 
be  feized,  &c.  for  I  have  feen  where  a  man  (plaintiff)  hath 
fued  a  writ«of  nuiiance  of  his  market;  the  judgment  was 
given,  that  the  defendant's  market  ihould  be  feized,  &c. 
But  here  non  conftat  curiae,  whether  this  nfiarket  com- 
menced by  wrong,  or  by  grant,  wherefore  there  is  the 
greater  reafon,  for  the  uncertainty,  that  the  judgment  be 
given,  that  the  market  fliall  be  feized,"—"  cum  hoc 
concordant  alii  jufticiarii — ^as  to  the  judgment  to  be  given, 
as  Billing  had  faid." 

Jenkins,  in  his  Centuries  (^7),  reports  the  cafe  thus: 
"  A  quo  warranto  is  brought  in  the  King's  Bench ;  the 
defendant  being  fummoned  makes  default;  and  another 
default  at  the  return  of  the  venire  facias ;  judgment  (hall  be, 
that  the  franchife  fliall  be  feized  into  the  King's  hands; 
and  not  that  itjhall  he  forfeited  \   for  it  does  not  yet  appear 

whether  there  be  caufe  of  forfeiture. No  man  fliall 

finally  lofe  his  land,  or  his  franchife,  on  any  default,  if  he 
has  never  appeared," 

(a)  141. 

The 


OF    CORPORATIONS.  ^Oj 

The  chief  baron  (tf),  who  delivered  the  opinion  of  the 
judges,  in  the  Houfe  of  Lords,  in  the  cafe  of  the  King  and 
Amery,  on  this  part  of  the  cafe,  after  ftating  the  judgment 
againft  the  corporation  of  Chefter  (i),  expreffed  himfelf  to 
thisefFe£t:   that  confiderlng  this  judgment  according  to 
the  letter  of  it,  it  was  much  eafier  to  fay  what /V  wjx  w/, 
than  what  it  really  was,  or  what  it  was  meant  to  be.  That 
it  was  not  ^  final  judgment,  for  the  court   referved  to 
themfelves,  **  to  make  further  order  if  they  fhould  think 
fitj"  it  was  not  perpetual^  for  it  was  expreffed  to  be  only 
until  the  court  fhould  make  further  order;  it  was  not  a 
judgment  on  the  right  of  the  King,  for  it  decided  nothingy 
an3  itexprefsly  referved  the  power  of  deciding;  it  was 
not  a  judgment  againft  the  corporation,  for  the  fame  rea- 
fons  which  fbewed  that  it  was  not  a  judgment  on  the  right 
of  the  King. — It  could  not  be  confidered  with  more  ad- 
vantage to  the  defendant,  than  by  fuppofing  it  to  be  as 
full,    as  complete,    and   as  perfeft  a  judgment  as   the 
court  could  by  law  pronounce  againft  the  corporation  in  the 
aftual  ftate  of  the  cafe.    In  the  words  of  Jenkins,  it  was. 
clear  law,  *^  that  no  man  fhould  finally  lofe  his  land,  or 
his  franchife,  on  any  default,  if  he  had  never  appeared." 
And,  with  regard  to  franchifes,  the  court  had  no  authority 
to  do  more  than  to  award  feizure  into  the  King's  hands,^ 
nomine  di/iriifionis ;  and  this  judgment  could  have  no  fur- 
ther operation  than  to  put  the  King's  hands  on  the  fran- 
chife,   for  the  purpofe  of  diftrefs,  without  touching  the 
right.     When  the  franchife  was  feized  into  the  King's 
hands  for  want  of  appearance  on  the  firft  day  of  the  eyre, 
it  was  to  remain  in  his  hands  till  his  further  orders ;  thefe 
were  his  legal  orders,  communicated  in  the  proper  channel 
by  his  courts  of  law :  the  King  had  only  a  pofeffnin ;  t[;ere 

{a)  Eyre.    Vid.  p.  494 

K  k  4  was 


504  THE    LAW 

was  no  day  prefixed  to  the  party  to  come  in  and  claim 
after  feizure,  either  before  the  King  or  in  the  Iter ;  but  it 
was  clear  that  the  party  might  come  in  at  his  own  time,  at 
leaft  during  the  eyre,  whether  he  could  come  in  afterwards 
or  not :  though  this  procefs  appeared  to  be,  in  the  nature  of 
it,  feizure  nomine  diflri^iionis^  it  could  not  readily  be  col- 
lected how  it  could  be  extended  into  either  procefs  or  judg- 
ment that  could  bind  the  right ;  and  it  was  not  eafy  to 
conceive  how  the  right  fhould  be  bound  without  fome  pro- 
cefs of  judgment;  yet  in  the  cafe  of  the  market  in  15  £d« 
4,  it  was  ftated  by  Littleton,  one  of  the  juftices,  ^  that  at 
the  common  law,  before  the  juftices  in  eyre,  if  the  party 
was  fummoned  and  came  not  during  the  eyre,  he  (hould 
forfeit  his  franchife  for  ever."  And  one  of  the  counfel, 
flating  the  fame  idea  with  more  particularity,  faid,  *'  I  fay, 
that  before  juftices  in  eyre,  if  the  party  who  hath  the  fran- 
chife come  not,  then  the  franchife  fball  be  feized  into  the 
King's  hands  nomine  di/lri^ianis ;  and  if  the  party  who 
ought  to  replevy  the  franchife,  come  not  during  the  eyre  • 
in  fuch  county,  he  ought  to  forfeit  the  franchife  for  ever  > 
and  fo  it  happened  in  the  eyre  of  Kent,  and  therefore 
Herby,  then  jufticc  in  eyre,  faid,  let  the  party  come  fitting 
the  eyre,  or  otherwife  he  has  loft  his  franchife  for  ever:'* 
thu*  he  made  no  diftindlion  between  the  confequence  of 
not  coming  after  a  feizure  for  non-claim,  and  the  confe- 
quence of  a  feizure  for  default  of  appearance  after  a  fum- 
mons  i  and  probably  h^  was  fo  far  right.  It  was  prefumed, 
the  franchiie  was  not  forfeited  by  virtue  of  this  feizure, 
for  tliat  which  was  procefs  of  dijirmgas  originally,  could 
not  change  its  nature,  and  become  final  judgment  on  a 
right  in  confequence  of  the  party!s  not  coming  in  during 
the  eyre ;  but  Herby  tells  you,  that  all  this  muft  mean  that 
the  party  fliould  never  be  permitted  to  replevy  afterwards, 

and 


OF     CORPORATIONS.  505 

and  as,  by  the  rule  of  the  eyre,  he  muft  replevy  before  he 
could  claiiD)  he  could  never  claim,  becaufe  he  could  not 
replevy,  and  thus,  in  an  indire£b  way,  he  fhould  lofe  his 
franchife. 

The  chief  baron  then,  alluding  to  the  procefs  in  the 
writ  of  right,  which  he  fhewed  was  not  conclufive  on  the 
defendant,    who  did  not  appear,    obferved,   that  it  was 
Arange  and  anomalous,   that  in  a  proceeding  in  a  writ  of 
right,  which  this  writ  of  quo  warranto  was,    the  party 
fhould  lofe  his  right  in  that  very  intricate  way  in  which  * 
^one  he  c5«/i  lofe  it,  without  judgment,  and  without  any 
fumoions,  after  the  feizure  was  firft  made :  he  conceived 
that  this  was  not  the  law  of  the  iter ;  and  that  nothing  fhort 
of  forejudger  barred  the  right  for  ever.     Sir  Edward  Coke 
had  too  haftily,  in  the  judgment  of  the  chief  baron,  adopted 
this  do(9:rine  from  the  year-book  of  1 5  E,  4 ;  but  he  had  fur- 
nifhed  his  readers  with  an  extradl  from  a  year-book  of 
greater  antiquity,  which  was  a  much  better  authority,  and 
went  a  great  way  indeed  to  prove  that  he^  and  thofe  who 
decided,  if  indeed  they  did  decide,  that  cafe  in  1 5  E.  4,  utterly 
miftook  the  law. — This  was  the  cafe  from  the  year-book 
of  z  E.  3,  cited  like  wife  by  Sir  Edward  Coke  in  the  cafe  of 
Strata  Marcella  («),     It  was  in  error  in  the  King's  Bench, 
on  a  judgment  of  forejudger  in  quo  .warranto  before  juftices 
in  eyre :  the  judgment  was  reverfed  for  two  reafons  which 
Sir  Jeffry  Scrope  openly  declared;  firft,  that  the  juftices 
in  eyre  were  miftaken  in  oufting  the  defendant  of  aid  where 
it  was  grantable,  and  fecondly,  that  they  h2iAforejudged  the 
defendant  of  the  franchife,    "for,"   fays   Sir  Jcftry,  "in 
ibme  cafes,  the  franchife  ought  to  be  fcized  into  the  King's 
hands;  in  fome  feized,  as  in  his  right,  till  the  party  has 
made  fine — and  in  fome  fliall  be  forejudged,  but  forejudger 

{(t)  9  Co.  28.  Vkl.  ante,  p.  396,  7. 

holds 


1 

I 


506  THE    LAW 

holds  foTiver:**  aftrong  inference  that  feizure  in  right  of 
the  King,  or  feizure  into  ihe  Kling's  hands,  which  evi- 
dently means  nomine  SJiri£iioniSy  did  not  hold  for  ever.-^ 
Here  then,  iaid  the  chief  baron,  are  the  feizures  nomine  dif^ 
tri^ionisy  the  feizure  in  right  of  the  King,  and  the  final 
judgment  on  the  right  clearly  marked  out— when  in  this 
cafe  they  came  to  the  King's  Bench,  it  was  infilled 
that  the  party  having  made  default  after  appearance,  he  had 
forfeited  his  franchife,  "It  is  not  fo,"  fays  Sir  Jefiry, 
^  but  he  (hall  be  fined  and  fuiFered  to  plead,  and  there  is  a 
diverfity  between  replevin  and  fine;  for  replevin  lies 
where  the  fianchife  is  not  claimed  in  time,  and  fine  lies  in 
the  cafe  utfupra^  and  other  like  cafes.** 

The  chief  baron  faid,he  believed  this  was  the  onlyrafe 
to  be  found  in  which  even  the  counfel  argued  that  a  for- 
feiture was  incurred  by  reafon  of  not  appearing,  or  not 
making  qlaim  at  the  laft  eyre,  either  upon  mere  non-claim, 
or  having  made  default  of  appearance  in  the  laft  eyre,  and 
not  appearing  during  the  eyre. — That  this  was  well  founded, 
he  (hewed  by  a  minute  examination  both  of  the  rolls  of  the 
iters  in  the  Exchequer,  and  of  all  the  printed  accounts  of 
the  proceedings  in  thofe  early  times.  He  then  reverted  to 
the  cafe  in  15  Ed.  4,  and  remarked  that  it  feemed  fufiicient 
to  condemn  the  dodlrine  there  laid  down,  of  forfeiture 
being  incurred  for  want  of  appearance  and  replevin ;  that 
the  court  fhrunk  from  its  own  principles ;  for  after  agree- 
ing, as  it  (hould  feem,  that  by  analogy  to  the  rule  of  the 
eyre,  a  forfeiture  had  been  incurred  by  the  defendant  in  the 
cafe  before  them,  they  pronounce  a  judgment  quoufque*-^ 
How  it  happened,  continued  the  chief  baron,  that  the 
judgment  was  in  fa£l  entered  in  this  manner,  could  only  be 
conjedlured.  Billing's  reafon  for  forfeiting  the  franchife, 
"  becaufe  otherwife  the  King  cannot  have  any  efFeft  of  his 

fuit," 


OF     CORPORATIONS.  507 

fuit,"  appeared  certainly  to  have  great  weight— The  re- 
ference by  the  ftatute  to  the  proceedings  in  eyre,  and  thP 
fuppofed  courfe  of  proceeding  there,  ftrengthened  the  ob- 
fervation.  Their  argument  all  tended  to  induce  forfeiture 
and  final  judgment  j  why  the  final  judgment  was  not  given 
it  was  not  eafy  to  imagine,  but  after  the  court  are  under- 
ftood  to  have  agreed  that  the  market  was  forfeited,  and 
that,  therefore,  final  j  udgment  ought  to  be  given.  Billing 
ftarts  another  difficulty : 

Billing.  "  Shall  the  King  have  a  capias  pro  fine  in 
this  cafe  or  not?'* 

Catesby,  "He  ihall  not;  for  it  may  be,  that  the 
party  hath  good  right  to  this  market,  and  fo  hath  done  no 
wrong  to  the  King ;  and  if  a  tenant  in  a  precipe  quod  red- 
dat  make  default  upon  default,  io  that  the  demandant  hath 
judgment  to  recover,  the  tenant  (hall  not  be  amerced,  for 
flill  no  default  can  be  adjudged  in  the  tenant ;  fo  here — if 
no  wrong  can  be  adjudged  in  him  who  claims  the  market, 
there  is  no  reafon  to  grant  a  capias  profineJ*^ 

Choke.  "  If  we  fay  the  judgment  is  right,  then  a  capias 
ihall  ifilie,  for  the  judgment  fhallbe  accounted  like  the  cafe 
of  a  trefpafs  confeffed,  in  which  cafe  there  fhall  be  a  fine." 

If  I  may  prefume,  faid  the  chief  baron,  to  fay  fo  of  men 
of  great  learning  and  talents,  who  lived  much  nearer  than 
we  do  to  the  times  when  this  proceeding  was  in  ufe,  I  can- 
not imagine  that  thofe  judges  perfedly  underftood  the  fub- 
jeft  before  them ;  for  in  the  proceeding  by  writ  of  quo 
warranto,  I  do  not  apprehend  that  there  could  be  a  judg- 
ment of  capias  pro  fine :  the  defendant  comes  in ;  he  is  in 
the  nature  of  a  plaintiff;  he  makes  his  claim ;  if  he  fail  in 
making  it  good,  there  is  no  }\idgmcnto{  capias  pro  fine -^ 
but  the  judgment  is  quod  fit  in  mifericordia .  But  Choke, 
continued  the  chief  baron,  reafoned  right  though  his  prin- 
ciples 


508  THE    LAW 

ciples  were  wrong :  on  thefuppofition  that  there  might  be 
a  capias  pro fine^  he  reafoned  right,  *^  if  you  mean  that  there 
Ihould  be  a  forfeiture  here,  it  confefles  the  trefpafs,  and 
therefore  there  ought  to  be  a  capias  pro  fine  J"*  Might  not 
Choke's  obfervation  have  led  the  judges  to  reconfider  their 
opinion,  to  have  changed  it,  and  to  have  pronounced  the 
judgment  in  the  form  in  which  it  now  appears  ?  It  is  im- 
p  )ffible  to  reconcile  the  form  to  the  reafoning. 

Here  the  entry  on  the  controlment  rolls  becomes  ma- 
terial. There  is  an  entry  of  fubfequent  procefs,  both  of 
venire  znd  diftringas^  continued  to  the  death  of  the  party.— 
This  fuggefied  foiyic  other  obfervations.  The  entry  left 
no  room  to  fuppofe  that  the  judgment  which  the  court  in- 
tended to  pronounce  was  entered  erroneoufly ;  they  could 
not  have  intended  to  pronounce  a^W  judgment  where  they 
continued  to  iflue  procefs  to  compel  appearance :  toiiTue 
further  procefs  was  altogether  inconfiftent  withy&ifl'/jufdg- 
ment,  but  was  perfectly  confident  with  a  judgment  quouf- 
que^  that  being  underftood  to  be  a  regular  award  of  pro- 
cefs in  the  nature  of  a  diftrefs. 

This  entry  weakens  the  force  of  Billing's  reafon  for 
making  a  default  work  a  forfeiture:  if  the  proceedings 
were  to  be  at  an  end  on  the  feizure  for  default,  and  the 
King  could  by  no  poflibility  go  on,  it  feemed  to  be  a  reafon- 
able  thing,  that  the  King  fhould  have  the  efFe<9:  oi  his  fuk 
by  fome  judgment  or  other  in  that  ftagq  of  thecaufe  :  but 
if,  after  a  liberty  was  taken  into  the  King's  hands  nomine 
di/iri,^ionisy  procefs  might  ftill  go  on  againft  the  party  to 
bring  him  in,  either  for  the  purpofe  of  forejudging  the 
franchife,  or  of  having  a  decifion  and  amercement  if  the 
claim  were  falfe,  or  for  any  other  imaginable  purpofe ;  it 
was  not  true,  as  was  alleged  in  this  cafe,  that  the  procefe 
was  determined  by  due  courfe  of  law,  and  that  nothing 

was 


OP     CORPORATIOKS.  509 

was  to  be  done  after  the  venire  facias.  There  was  an  ap- 
pearance of  great  regularity  and  precifion  in  the  entry: 
credit  muft  be  given  to  the  roll  that  the  procefe  afhially 
iilUed,  and  the  purpofe  was  apparent ;  it  was  to  compel 
that  appearance  which  the  feizure  had  not  effeded,  and  if 
there  could  be  no  forejudger  of  the  franchife  before  appear- 
since,  this  procefs  was  the  neceflary  means  to  obtain  the 
efFe<Sfc  of  that  fuit.  Proceedings  in  eyre  were  diredUy 
analogous  to  this  very  courfe  of  proceeding  which  pre- 
vailed, in  this  cafe;  though  certainly  the  whole  of  it  was 
inconilftent  with  the  argument  as  found  in  the  year-book, 
both  of  the  judges  and  of  the  counfel. 

"Thus,"  continufes  the  chief  baron,  ^*  I  think  myfelf 
warranted  to  conclude  upon  the  whole  of  this  part  of  the 
argument,  not  only  that  the  judgment  againft  the  corpo- 
ration of  Chefter  did  not  import  a  forfeiture  or  forejudger 
— but  that  no  forfeiture  or  forejudger  was  incurred  in  the 
aflual  circumftances,  or  could  have  lawfully  been  adjudged 
upon  the  default  which  is  ftated  in  thefe  pleadings.'' 

But  the  queftion  ftill  remained,  what  was  the  efFe£t  of 
this  judgment?  It  had  been  objedled  that  it  had  no  opera- 
tion at  all,  as  it  was  but  an  award  of  procefs  not  followed 
up  by  an  acSlual  execution.— It  had  been  anfwered,  that  by 
force  of  the  judgment  "  that  the  liberties  Jhould  be  feized,'* 
they  adlually  we7'e  In  the  hands  of  the  King.  It  was  cer- 
tainly true,  the  chief  baron  faid,  that  where  the  right  of 
the  King  is  found  by  matter  of  record,  adjudged  pofleffion 
in  law  followed,  and  the  adverfe  pofleflion,  in  fa£);,  became 
ufurpation  upon  the  King.  But  with  regard  to  award  of 
feizure  nomine  di/iri^ionisj  as  contradiftinguifhed  from 
feizure  in  right  of  the  King,  it  feeraed  to  him  to  be  clearly 
otherwife:  the  ftatuteof  quo  warranto  faid,  "the  liberties 
fliall  be  taken  into  the  King's  hands  by  the  fherifF  of  the 

place.  •» 


jIO  THt    LAW 

place.*'  So  faid  Britton,  and  fo  fiud  Keilway  in  all  the  cafes 
where  this  fubjed  occurred ;  and  in  the  cafe  of  the  King 
and  Quadryng  itfelf,  there  was  a  writ  to  the  (herifF  to 
leize,  which  appeared  to  have  been  jiegularly  returned » 
from  all  which  he  concluded  that  there  ought  to  have  been 
a  writ  to  the  (herifF.  But  he  did  not  think  that  any  ftrefi 
ought  to  be  laid  on  ^e  circumftance  of  a  writ  to  the 
{heriff  not  appearing  upon  the  record.  If  fuch  writ  was 
neceflary,  he  thought,  that,  at  fuch  a  diftance  of  time, 
it  muft  be  prefumed  that  it  aftually  did  ifTue  and  was 
returned. 

What  then  was  the  efftSt  of  this  judgment  ?  He  con- 
ceived that  its  operation,  in  laWj  'correfponded  exstfily 
with  the  cfkA^  which  he  concluded,  from  the  language  of 
the  charter  of  James  a,  it  had  in  point  of  fa£t ;  that  it  laid 
the  King's  hands  on  die  franchife  of  being  a  corporation, 
and  upon  the  other  franchifes  in  the  information,  fo  that 
die  corporation  could  not  ttfi  its  liberties ;  the  a£tion  of  its 
vital  powers  was  fufpended:  and  in  this  fltuadon,  he  had 
no  doubt  but  that  a  cuftos  might  have  been  appointed.  In- 
Head  of  this,  the  crown  had  introduced  into  Chefter  ano- 
ther corporation  by  charter,  to  whom  the  cuftody  of  the 
city  was  committed,  and  to  whom  liberties,  either  pre- 
cifely  the  fame,  or  iimilar  to  thofe  which  the  old  corpora- 
tion had,  were  alfo  granted.  This  was  certainly  to  the 
prejudice  of  the  rights  of  the  old  corporation;  and  on  the 
grounds  of  argument  already  ftated,  this  charter  was  void, 
as  againft  the  right  of  the  old  corporation,  except  as  to  the^^ 
cuftody.  For  a  time,  indeed,  the  old  corporation  were 
not  in  a  condition  to  fliake  off  their  cuftos,  or  to  affert 
their  rights ;  but  they  were  always  intitled  to  have  re- 
deemed their  liberties  on  a  fine  to  the  King  for  their  de- 
fault.   It  fo  happened  that  the  neceifity  of  the  times  ferved 

them 


\ 


or    CORPORATIONS.  5II 

them  in  the  place  of  a  fum  of  money;  and  by  virtue  of 
the  charter  of  pardon  and  reftitution,  the  King's  hands 
were  removed :  they  returned  to  a  condition  to  exercife 
their  liberties ;  the  power  of  the  new  corporation,  as  cuftoSy 
neceilarily  ceafed,  and  to  every  other  purpofe  the  letters 
patent  became  void  and  of  no  ^Se&,[a)^ 

It  now  remains  to  confider  the  .effe<9:  of  a  final  judg- 
ment.——The  judgment  againft  the  city  of  London 
was  thus.  *'  For  this  that  it  appears  to  the  court  here, 
that  the  aforefaid  mayor,  and  commonalty  and  citizens  of 
the  city  aforefaid,  have  forfeited  to  the  lord  the  King  the 
liberties,  privileges,  and  franchifes  aforefaid,  for  the  caufes 
in  the  replication  aforefaid,  by  the  attorney  general 
above  fpecified ;  that  the  pleas  of  the  aforefaid  mayor  and 
commonalty  and  citizens  of  the  city  aforefaid,  in  rejoining 
and  rebutting  in  that  behalf  pleaded,  and  the  matter  there- 
in contained,  are  not  fufficient  in  law  to  preclude  the  faid 
lord  the  King  from  the  forfeiture  aforefaid,  or  for  the  mayor 
and  commonalty  and  citizens  of  the  city  aforefaid  to  claim 
the  liberties,  privileges,  ztiA  franchifes  aforefaid  to  be  al- 
lowed and  adjudged  to  them:  and  on  mature  deliberation 
thereupon  had  \ 

"It  is  confidered  that  the  liberty,  privilege  andfran- 
chife  aforefaid,  to  he  of  themfelves  one  body  corporate  and 
politic,  in  deed,  fadl,  and  name,  by  t^e  name  of  mayor, 
commonalty,  and  citizens  of  the  city  of  London,  and  by 
that  name  to  fue  and  be  fued,  to  anfwer  and  be  anfwered, 
by  the  fame  mayor  and  commonalty  and  citizens  of  the 
city  of  London  aforefaid,  above  claimed,  be  tai^n  and 
feized  into  the  hands  of  the  lord  the  King,  and  that  the 
aforefaid  mayor  and  commonalty  and  citizens  of  the  city 

{a)  VId.  the  judgment  in  Rex  v.  Amery  in  the  Houfe  of  Lords,  in 
the  account  of  that  cafe  in  two  volumes  quarto, 

of 


^ 


Jll  rut    LAW 

of  London  aforefaitd,  be  taken  to  fatisfy  the  (aid  Lord  the 
King  for  a  fine  for  the  ufurpation  of  the  liberties,  privileges^ 
and  franchifes  aforefaid." 

This  judgment  was  given  in  1683,  but  no  execution 
ever  iiTued ;  and  it  appears  by  the  ftatute  of  i  W.  and  Mi 
ft.  I,  c.  8,  either  that  the  city  continued,  in  the  a£hial  en- 
joyment of  their  franchifes  in  the  feme  manner  as  if  no 
judgment  had  been  given,  or  that  a  new  charter  conferring 
either  the  fame  or  fimilar  privileges  had  been  granted  by 
Charles  the  fecond  or  James  the  fecond.— In  the  1  W.  and 
M(tf).  an  aft  palled,  by  which  it  was  enafted)  that  if  any 
perfon  then  having  any  office  or  employment,  civil  or  mi- 
litary, fliould  negleft  or  refufe  to  take  the  oaths  thereby  ap- 
pointed to  be  taken,  in  fuch  manner  as  by  that  aft  is  di- 
refted,  before  the  firft  of  Auguft,  1689,  the  office  or  em- 
ployment of  every  perfon  fo  neglefting  or  refufing  ihould 
be  void.— In  1690  the  ftatute  of  4  W.  and  M.  ft.  i,  c.  8, 
was  made,  by  which,  after  reciting  among  other  things, 
*'  that  judgment  had  been  given  on  an  information  in  the 
nature  of  quo  warranto,  exhibited  in  the  court  of  King's 
Bench  againft  the  mayor  and  commonalty  and  citizens  of 
the  city  of  London,  that  the  liberty^  privilege^  and  fran^ 
chife  of  the  faid  mayor  and  commonalty  and  citizens^  being  a 
body  politic  and  corporate y  Jhould  he  feized  into  the  King's 
hands  as  forfeited 'y**  itisenafted,  *^' that  they^/W  judgment, 
and  all  and  every  other  judgment  given  or  recorded  in  the 
faid  court,  for  feizing  into  the  King's  hand  theliberly^  pri" 
vilegCy  orfranchije  of  the  mayor  and  commonalty  and  citizens 
of  the  city  of  London^  of  being  of  themfehes  a  body  politic  and 
corporate^  &c.  fliall  be  reverfed,  annulled,  and  made  void." 

This  ftatute  abrogates  any  charters  that  may  have  been 
made  and  granted  to  any  perfoiis  conflituting  the  corpora- 
tion 

(tf)  I  W.  andM.  ft.  I,  c.  8,  f.  6. 


"1 


OF     CORPORATIONS.  5^3 

tiQA  of  thQ  city,  Qr  any  of  the  fraternities  within  it ;  but 
r^tifi^si  all  prQcee4ing$  in  law  or  equity  under  Aj9h  nev^ 
cbartQf$,  in^eq[ini(ies  the  perfons  and  Q{|Jcer$  ading  under 
tfeem  i  €Qnfii:in^  all  leaf^^  padp  under  proper  reftri<3iQns* 
apd  th^  6re64qm  of  every  perfon  obtained  in  any  of  tbe 
cpmpaBl^$  in   th^  int^rv?^}  between  the  judgment  and  th^ 

reverfal ;  dire^^  th^t  ^U  the  (mt^u^  magiftrate^  then  JwSvally 
i|fiQ%e{hal|l  continue  til}  a  new  eleflion^f  fuch  annual 
«P^giftratQs,  th?  tm^  for  v^hicb  h  ?ppqinted  by  the  ^Q  i 
bi|t  if  no  n<&w  ele£lioi|  |houl4  t^e  place  ^t  th^t  time,  di- 
r^fts  th^ttbey  fb^ll  cpntinue  till  tbe  ordinary  and  cuftom^ry 
tim^  fpr  ele^ion$,  when  all  o^%cers  and  n:\agiitrates  |ball 
bp  chofen  gs  yfu^  j  ^pd  ci\^&$j  '*  th^t  all  officer?  ^nd 
minifters  of  the  f4id  city,  th*t  rightfiiUy  held  any  office 
or  place  in  the  faid  city,  or  liberties  thereof,  or  in  the 
llQro^gb  Pf  5outbw^r|f,  %t  the  tiipe  when  the  faid  judg- 
mpnt  was  giv^H)  ihall  be  confirtyied  and  fl)all  have  an4 
^njoy  tfa^  fame  as  fully  as  they  held  them  at  the  time  of  th? 
fai4  judgnnent,  except  fucb  as  have  voluntarily  furrendered 
^y  fucb  office  pr  place,  or  bavi  h$en  removed fqr  anyjuji 
cwfi*^  Then  it  enafts  that  ail  perfons  fo  to  be  reftpred 
and  continued  Aiall  take  the  oaths  appointed  to  be  taken  by 
I  W.  and  M*  ne^t  tern^  after  fucb  ^eftitution. 

Th5  feffion  of  parliament  in  which  the  ft,  i  W.  and  M. 
was  pafled,  began  1 3th  pf  February,  i688. 

Sia  James  Smith  was  an  alderman  of  the  city  at  the 
rime  when  this  judgipent  was  given  in  the  quo  warranto ; 
he  did  pot  take  tba  oaths  prefcribed  by  this  ftatute  befp.re 
the  firft  of  Auguft,  1689;  for  which  rfsafpn  be  \va^^  in 
point  of  fa<a,  removed  from  tbe  office  of  aldern>an  by 
thofe  who  exi^rcifed  the  functions  of  the  corporation,  as  it 
feems,  fome  time  before  the  ^t^tute  for  revcr/ing  the  judg- 
loent.    In  confequence  of  that  ftatute,  Sir  Jame$  Smith, 

in  1^91,  brp^^ght  a  mandamup  to  b?  ff ftprfd. 
Vol.  II.  L  1  The 


5^4  THE    LAW 

The  defendants  returned,  *^  that  Sir  James  Srtiitfa^ 
on  the  13th  of  February,  1688,  was  one  of  the  alder- 
men of  the  city  of  London,  to  that  place  and  office, 
hefort  that  time,  duly  elected  and  preferred,  according 
to  the  cuftom  of  the  laid  city,  and  from  the  faid  1 3th 
of  February,  1688,  to  the  firft  of  Auguft  following, 
remained  one  of  the  aldermen;  but  that  at  any  time 
before  the  faid  firft  of  Auguft  he  had  not  taken  the 
oaths  prefcribed  by  i  W.  and  M.  but  to  take  the  iame, 
before  the  faid  firft  of  Auguft,  had  altogedier  negled-^ 
ed ;  whereby,  and  by  virtue  of  the  faid  a6t,  the  faid 
office  became  void;  and  that  the  faid  Sir  James  Smith, 
at  any  time  after  this  negleA,  was  never  eleded  inta 
the  office  of  one  of  the  aldermen ;  and  therefore  they 
could  not  reftore  him." 

Though,  in  this  return,  no  notice  is  taken  of  the 
judgment  againft  tlie  city,  yet  the  efFe£t  of  the  latter 
was  made,  at  firft,  die  principal  fubjedt  of  difcuffion. 
The  obligation  on  Sir  James  Smith  to  take  the  oaths, 
it  was  faid,  depended  on  the  queftion,  '^  whether  he 
was  an  alderman  at  the  time  when  the  ftatute  requir* 
ing  them  was  made?"  If  he  was  an  alderman,  the  de- 
fendants had  returned  a  good  caufe  for  not  reftoring 
him.  If  he  was  not  an  alderman,  then  he  was  not 
bound  to  take  the  oaths  before  the  firft  of  Auguft, 
1689,  and,  confequently,  by  virtue  of  the  ad  for  re- 
verfing  the  judgment  againft  the  city,  he  was  intitled 
to  reafTume  the  office  he  had  held  before  that  judgment 
was  pronounced.  But  this  queftion,  whether  he  was 
an  alderman  or  not,  depended  on  the  effeft  of  the  judg- 
ment :  if  by  that  the  corporation  was  difTolved,  he  was 
not  an  alderman  at  the  time  when  the  oaths  were  to  be 
taken ;  if  the  corporation  was  not  difTolved,  he  was 
an  alderman,    and  ought  to  have  taken  the  oaths ;    not 

having 


,\  ^w    ^ 


OF    CORPORATIONS.  515 

having  taken  them,  he  was  removed  for  juft  caufe, 
and  confequently  was  within  the  exception  of  the  afl 
for  reverfing  the  judgment.— But  after  the  cafe  had 
been  argued  feveral  times,  it  was  difccvered,  that 
no  notice  being  taken  of  the  judgment  in  the  re- 
turn, the  former  could  not  be  confidered  by  the  court, 
and  that,  had  the  a£t  for  the  reftitution  of  the  city  not 
been  made,  the  only  queftion  would  have  been  on 
Sir  James  Smith's  negle£):  to  take  the  oaths.  But  this 
a£t  being  a  general  law,  the  court  were  bound  to  take 
notice  of  it,  which  they  actually  did,  and  made  the 
queilion  of  Sir  James  being  an  alderman  or  not,  de- 
pend not  on  the  effe6l  of  the  judgment  as  really  entered 
on  the  record,  but  as  recited  in  the  aft. — On  the  ge" 
neral  queftion,  whether  a  corporation  could  be  diflblved 
by  judgment  for  a  forfeiture,  the  court  all  agreed  that 
it  mighty  though  they  differed  as  to  the  proper  form 
of  fuch  a  judgment.  They  all  agreed,  however,  that 
it  was  not  diflblved  by  the  judgment  as  recited  in  the 
a£l\  which  was,  "that  the  liberty,  franchife,  and  privi- 
lege of  the  city  of  I^ondon,  being  a  body  politic,  &ۥ 
(hould  be  feized.'*  Here  the  word  of  being  omitted 
before  the  word  beings  the  judgment  was  not  againft 
the  corporate  exiftence  of  the  city,  but  againfl  the 
franchifes  it  enjoyed :  and  Holt  faid,  "  that  a  corpo- 
ration  might  fubfift  after  its  franchifes  were  taken  away  ; 
for  that  thefe  were  not  eflential  to  it,  but  only  a  pri- 
vilege appertaining  to  it  5  that  the  eflence  of  a  corporation 
was  to  make  bye  laws,  and  govern  their  members,  which 
they  might  do  though  their  franchifes  were  feized"  {a). 

When  a  corporation  has  lofl  an  integral  part,  or  is  fo 
far  reduced  that  it  cannot  continue  the  fucceflion,  it  is 

(tf)  Sir  James  Smith's  cafe,  4.  Mod,  5*.    Skinneri  310,  31a.    1 
Show.^  2639  174.    Carth.  217. 

L 1  z  diflblved 


5i6  *  ll  E    LAW,  &c. 

dtflblv^d  without  any  \tpl  proceeding :  bitt  for  a  ferfeiturs 
a  corporation  is  not  diflblred  without  a  judgmem  in  a  couff 
of  law  td  enforce  it.  **  A  fcin  facias  i%  proper/'  fays 
Mr,  Juftlce  A{hhutft(a)i  "  wher*  there  is  a  legal  exifting 
body,  capable  of  a£ling,  but  who  hate  been  guilty  of  an 
abafe  of  the  power  ehtrufted  to  them}  fdr  as  a  delinquency 
i^  ilnputed  to  them,  they  ought  not  to  be  <:ondemfied  un- 
heard; but  that  does  not  apply  to  the  cafe  of  a  iton»exift- 
ing  body.  A  quo  watrantd  Is  necefikry  Where  there  is  a 
body  corporate  de  fadiO)  who  take  upon  themfelves  to 
^cl  as  a  body  corporate,  but  Whd,  from  fome  defe£l  in 
their  conftitution,  cannot  legally  exetcife  lb6  powers  they 
afFea  to  ufe," 

When  a  corporation  is  diflblted^  the  King  may  either 
reftore  it,  or  may  ineorporat'e  another  fet  of  men  iii  the 
fame  place  (i). 

Thb  efFeft  of  the  diiTolutlon  of  21  eorporatlon  is,  th;it 
all  its  lands  revert  to  the  donor  i  its  privileges  and  fr&n- 
chifes  are  extingulfhed;  and  the  members  can  neither 
recover  debts  which  were  due  to  the  corporation,  nor  be 
charged  with  debts  contra£ted  by  it,  in  their  natural 
capacities.  What  becomes  of  the  perfonal  eftate  i§, 
perhaps,  not  decided ;  but  probably  it  Vefts  in  the 
crown  (c). 

The  confequencc  of  a  charter  of  reftitution,  is  that 
the  corporation  becomes  intitled  to  its  former  rights 
and  franchifes,  and  fubjeft  to  all  its  former  Obliga- 
tions (d). 

(a)  In  Rex  V.  Pafmore,  5  Tchil  Rep.  i^, 

(b)  Vid.  Colchcfter  v.  Seaber,  3  Bur.  it66.  Rwt  t.  Ptfittorc, 
3  Term  Rep.  1999  palEm. 

(r)  Vid.  Co.  Lit.  I  J.    I  Ler.  »37.    PoUcxFcii's  Arg.  Qjio  War. 
112.    Rex  V.  Pafmore,  247.    Colchefter  v.  Seaber,  3  Bur.  1S6S. 
id)  Vid.  Colchefter  v.  SeabOr»  3  Bur.  i966. 

END  OF  Vol.  ir. 


mof 


INDEX. 


A  Pad 

CTION, 

To  recover  the  penalty  of  a  bye  law 

By  whom  profecuted  •  ,  158,  j^^ 

In  what  courts  to  be  brought  .  1^7 

When  in  the  corporation  courts  .  159^166 

What  things  necefTary  to  be  ihewn  in  pleading  in 
fuch  action  .  •  .  167 

For  a  falfe  return  to  a  mandamus  •  363 

Vid.  Penalty,  Mandamus 

Mayheqhpfan:a.nnually  ♦  .  6,  7 

When  .removable  •  •  59,  60,  6x 

Amotion, 

Power  of, 

Incident  to  the  corporation  at  large            .  50—56 

May  be  lodged  in  a  fele^l  body                   •  56 

How  to  be  exercifed                .                   •  57 

When  it  may  or  may  not  be  exercifed  without  rea< 

fonablecaufe              •               .                 •  58 

Caufesof               .                     .                   .  6  ft— 8 

In  what  cafes  a  convi£lIon  at  law  ought  to  precede  it  SS*— 9^ 

ASSIZE, 

Whether  the  matter  of  all  hofpital  deprived  may  have  an 
aflize  •  .  •  •        178,  179 

Head  of  a  coll^  cannot  maintain  an  aflfize  for  his  head- 
fliip  ....  179 

Where  ajfize  lay,  mandamus  was. formerly  refyfed  318 

Attornky 


INDEX. 

Page. 

Attormet  General,  » 

His  power  in  filing  informations  in  the  nature  of  quo 
warranto  .  .  403,  415,  417,  431,  491 

Barrister, 

Mandamus  does  not  lie  to  compel  admifEon  to  the  de- 
gree of  .  •  .  .310 

Bishop, 

Not  vifitor  of  dean  and  chapter  as  to  matters  of  property  167 
How  far  vifitor  in  maiters  of  ele^ion  ,  26S 

May  deprive  fur  incontiiicncy  .  •  tjJ 

Where  lie  may  or  may  not  be  compelled  to  grant  a 
licence  to  preach  •  •  303,  4»  5>  7 

ViJ.  Oriinary 

Bye  Laws, 

How  far  they  may  aff.£l  cleftions  •  10—30 

Power  of  making  them  .  •        95>  103,  X05 

'K  '  incident  to  a  rorporation  at  large     9S 

•  ■         may  be  vefted  in  a  fele6i  body  99 

how  exteniive  •  ,100 


From  whence  they  have  their  obligation  '  .  103 

How  far  binding  on  ftrangers  '  •  103*  4,  $-.  ^ 

Muil  be  re^fonable  •  .  .  iQ/ 

———not  inconiiftent  with  the  general  law  of  the  land  109 
Mult  not  impofe  a  forfeiture  of  goods  •        109)  no 

How  far  good  to  levy  money  •  uo,  zii,  n^ 

Impofmg  an  oath  .  •  •  i^^ 

Expoftfaao  .  •  •       iw 

May  reguiaie,  but  nut  alter  the  conftitution  of  the  cor- 
poration .  •  .  .113-1** 
the  exercife  of  a  right                  •  i** 
the  internal  affairs  of  a  corporation      123}  124 
———trade               .               .              •      i»S^*37 
Vid.  Trade 

police  .  •  149""  J  55 


May  be  good  in  part,  and  bad  in  part  •  '55 

Bye 


1 


I  N  D  £JC. 

PiLGB. 

E¥)£<LaWS/ 

Obedience  to  them,  cannot  be  enforced  by  imprifonment, 
nor  forfeiture  of  goods  .  .  156 

nnr  by  action  to 
avoid  a  bond  or  covenant  .  .  ^$7 

—may  be  enforced  by  a  penalty  to  be  re- 


covered by  action  or  diftrefs  .  .  15^ 

How  their  validity  may  be  called  in  queftion  x  7qr-i  7  3 

Vid.  Aaion,  Diftrefs,  Penalty 

Chancery, 

How  far  it  has  the  fuperintendance  of.  charities         1 86  — 195 
Vid,  Vifitor 

Chapel, 

In  what  cafes  a  mandamus  will  lie  for  admiilion  or  re- 
ftorationtotlieufeoF  achapel  .  3*7—319 

Vid.  Meeting  Houfe 

Charitable  Uses, 

Statute  of  •  •  «  •  itz 

to  what  it  does  not  extend  •  184,  185 

Charity, 

Under  what  jurifdiftion  .  '       .  187 

Churchwardens  and  Overseers  of  the  Poor, 

Where  they  may  be  compelled  by  mandamus  to  make  a 

rate  ....  294,  295 

Cannot  be  compelled  to  grant  a  certificate  •  296 

Nor  to  call  a  veftry  .  ,  •  296 

Nor  to  make  a  church  rate  «  .  31P 

Commissioners  of  Excise, 

Where  they  may  be  compelled  by  mandamus  to  grant  a 
permit  .  .  ,  ,  297 

Common  Council, 

When  the  rcprcfentativc  of  .the  community  in  making- 
bye  laws  .  ^  '  ,  99—101 

Common 


I  Vl  D  t  ^. 

Page. 
Common  Councilman, 

WhcnhenrnybereknoTcd  i  «  6oy  6i 

Via.  Officer 

Companies  Corporate, 

How  far  their  bye  laws  are  l>incirng  £  105 

fcOKSTlTUTION  op  A  CORPORATION, 

How  affefled  by  bye  lawt  •  •  113 

Conviction, 

When  necelTary  to  precede  the  amotion  of  a  corporator  88^94. 

Dtan  And  Ckapte<r, 

May  be  compelled  by  mandamus  to  ffl  c^  a  vRcancy        317 
Vid.  Biflrjp,  Vifitor 

D1SPRANCHI8EMENT, 

Vid.  Amotion 

Dissolution  op  a  Corporation, 

A  corporation  may  be  diflblved  by  a6l  of  fj^'Kament       40 

By  the  death  of  all  its  members  •               447,  g 

By  the  deftrO^ion  of  -an  itft^gnd-^Mut  •448—465 

Byfurrcnder                  .                   .  4^5-^474 

By  forfeiture               •               .  •               ^-f^ 

By  what  proceeding  a  forfeiture  is  ehf<Jf<red  .          486 

The  efFe6l8  of  a  diiTolution               •  •               5x6 

Distress, 

To  levy  the  penalty  of  a  bye  law                   .  156 

»«             '        '       '  ■  f howinade  •            168 

■                                               bow  juftified  169 

Election, 

Originally  made  by  the  body  at  large  •  ■« 

On  what  circumdanoes  the  time  and  manner  of  it  de- 
pend '  .  •  •  «  a,  so 
Power  of  it,  incident  to  corporations  3—5 
Cannot  properly  be  where  there  is  no  vactocy  •< 
Aticientmodc of  it,  When  it may^thaiigbj  6 
Of  a  perfon  unqualified,  void  •  •  xx>  i* 
When  it  may  be  by  a  minority              .               .               i» 

Election, 


INDEX. 

Page. 

ELfiCTIONy 

Of  one  candidate  caa  be  defeated  only  by  vodn^  for 

anotlier  •  •  •  .  •  iz— iS 

Suppofed  diftin&ioA  between  eleSions  in  corporations, 

and  other  elections  •  •  16—19 

Regulated  by  bye  laws  •  «  ao«-»so 

VJd«  ^e  Laws 
In  confequence  of  ft.  11 G.  i,  c.  4  •  31 

In  what  cafes  a  mandamus  will  lie  in  confequence  oF 

ft*  II 6.  I9  c.  4  •  •  37-'4f 

■  I  whomayprefide  •  •  44 

before  whom  'the  peribn  «le£lfld  flufll  be 

fwom  in  •  •  •  45-^49 

In  what  cafes  it  may  be  adjourned  •  43 

How  far  the  vifitor  of  a  coHegelias  the  power  to  decide  on 

Elefltons  .  ^    •  •  •         z%% 

Mandamus  lies  to  compel  anckAioa  «  3H9  315 

Vid.  Vifitor,  Mandamus  ** 

Electors, 

On  what  circumftances  their  qualifications  depend  z,  20 

How  far  their  number  may  be  limited  by*byelaws  24—30 

An  integral  part  canndtlse  excluded  by  a  bye  law  28-^29 

Eleemosynary  Corporations, 

Hov^  differing  from  dther  corporations  in  the  power  of 

tnatkiug  bye  laws  •  •  .  103 

^ubje^  to  the  ftamtesdf  the  founder  .  181 

— — —  theviiitation  of  the  founder  or  his  heirs,  or 
one  appointed  by  him  •  •  iSk 

Vid,  Founder,  Vifitor 

Eligible, 

On  what  circumftances  their  qualifications  depend        2-'-2o 
How  far  their  number  may  be  limited  by  bye  laws       24^30 

"Error, 

Lies  on  ii  judgment  for  a  falfe  return  of  a  mandamus       364 
— ona  judgmenttmder'theft.  9  Anne,  c  20  369. 

Poes  not  lie  on'  die  ft^i  nor  on  peremptory  mandamus     370 

Founder^ 


I  N  D  £  X. 

Pags» 

Founder* 

Has  the  right  of  prcfcribing  ftatutes,  &c.  103,  iSi 

——of  appointing  a  vifitor  .  181,  195 

May  appoint  a  general  or  Jpecial  vifitor  .  >  959  1 96 

Franchise, 

Mandamus  lies  to  compel  admiifion  or  reftoration  to  it      31^ 

Freeman, 

Cannot  be  removed  without  caufe  •  .         60 

Governors  of  a  Charity, 

How  far  they  are  irifitors  •  .  187 

Holding  over, 

How  aiFc£led  by  11  G.  i,  c.  4        .  •  49^  50 

Hospitals, 
%  Subjedk  to  what  viiitatioii  •  iSoj  iSi,  i8» 

iNfORMATlON, 

Vid.  Quo  Warranto 

Integral  Part, 

Of  ele^lors,  cannot  be  excluded  by  a  bye  law         28,  29,  3* 

Jx;«TiCE8  OF  Peace, 

May  be  compelled  by  mandamus  to  do  any  aft  which 

it  is  their  duty  to  do  .  293,  4,  5,  6,  7,  300 

But  not  to  do  any  thing  which  they  have  a  difcretion  to 
do  or  not  to  do  .  .  .  19^ 

Lecturer, 
I  Where  he  may  or  may  not  have  a  mandamus  304 

Mandamus, 

Nature  of  the  writ  .  .  291,  325 

Hiftory  of  it  ^  .  .  29—293 

General  principles  on  which  it  is  granted  293,  303,  305,  309 

310,  3">  3»8>  355 
Lies  to  execute  a  ftatute,  or  a  duty  at  common  law  293—314 
To  compel  the  adminiftration  of  an  oath  ^  497  >  »9* 

Mandamus^ 


J 


Z  K  D  E  X. 

Pagc. 

Mandamus, 

Lies  to  compel  admlfllon  to  the  fi^edom  ofacorpo* 

ration  .  •  •  302,  303 

,.  ■  ■  '  ■  '        — *-  of  a  par- 

ticular  comj^^ny         '  .  .  116,  303 

Lies  to  dean  and  chapter  to  fill  up  a  vacancy  zjo 

— -to.  a  vifitor  to  receive  an  appeal  .  281,  297 

Does  not  lie  to  reftore  a  party  aSuaUy  expelled  by  the 

fentence  of  a  viiitor  .  .  281,  310 

Nor  to  compel  a  particular  officer  to  execute  the  fentence 

of  a  vifitor  .  .  .  282,  210 

Whether  it  lies  to  the  vifitor  to  execute  his  own  fen- 
tence, Qu.  ?  .  .  .  2S2 
Lies  to  a  perfon  who  is  vifitor,  to  do  an  a5l  in  another 
chara6ler               •                   .                   .  2^4 
Vid.  A£lion,  Aflize,  Biftiop,  Barrifler,  Churchwar- 
dens, Commiflioners  of  Excife,  Dean  and  Chap- 
ter, £le6lion»  Error,  Franchife,  Juttices  of  Peace, 
Officer,    Chapel,  Meeting  Houfe,   Seal,  Vifitor, 
Spiritual  Court 
The  form  of  the  writ                •                .               337  —  34© 
Who  may  join  to  profecute  it                .                 .  34.1 
How  far  it  may  command  different  things  to  be  done        342 
How  obtained               .  ^            •             .           .           343 
Who  muft  be  parties  to  the  rule                    .                    344 
Will  not  be  granted  till  there  be  a  default               .           345 
When  zfecond  writ  may  be  granted  for  the  fame  purpofe 

as  the  firft  .  .  .  346,  7 

How  the  writ  mufl  be  direfled  \  .        347,  g,  9 

When,  to  different  perfons  .  .  3^^ 

Howtefte'd  .  •  .  349 

Conclufion  of  the  writ  ,  .  ,         3  .- 

Certamty  required  in  it  .  .  355—360 

At  whattimeobje6lionmuftbetakentoit  360,  361 

Return  <ivi&f»  to  be  made  *,  ,  350—351 

i&yw  to  be  made  .  .  35^ 

Remedy,  -where  the  return  is  not  made  in  proper  time        352 
Remedy  for  a  falfe  return  .  .  363 

'  Pleadings  by  virtue  of  9  Anne,  c.  »o  365—367 

MaNDAMUSj 


I  H  V  Z%. 


Page. 


Mandamus, 

Writ  itiuft  be  ^b^ed  by  a  mimfterisd  officer  37 1—376 
What  is  a  good  return  •  .  377—393 
Coft8by9Aniic,  c.  ao  .  •  365—3** 
by  II G,  3               •              •               •  393>  394 

Meeting  H0V6E, 

In  what  cafe  a  mandamus  lies  to  compel  gcantbg  the 
Vik4ih  •  *  *  3*9-3S* 

Vid.  Chapel 

QrFiCE» 

A  mandamus  lies  to  compel  election,  admiilion  or  reftora- 

tion  to,  or  removal  from  an  office  314,  5,  6,  7,  8,  9,  320, 

3*ii  »>  3^  336*  S4S 

OFFICEN9 

Annua], 

When  he  <may  hold  orcr  *  S  ^>  7 

When  dtgible  for  life  or  during  pleafure  *  59 

When  ^movable  with,  or  w«diout  caufe  •  59»  ^^ 

May  be  fined  for  not  undertalung  an  office  .  i  r  a 

Where  he  may  be  compelled  to  do  an  aft  belonging  to  his 

office  .  •  •  *94»  «97>  ^9^ 

May  hATeajnandamuft  to  be  fwom  in  after  bi&  eledion     297 

Vid.  Office 
May  be  compelled  to  deliver  books,  A;c.  tohis  fuoceffor   301 
Utnifterial  officer  inuft  obey  mandamus  371—37^ 

Ordinary, 

^        Who  are  fubjeft  to,  and  who  exempt  from  his  viiitation    1 80 
To  what  fubjefts  his  vifitation  extends  •  180,  267 

Vid.  Bithop 

PlNALTY, 

To  enforce  obedience  to  abyclajK,  to^ivh^le.uAfitKHight 

to  be  limited  .  .  .  i57>  J5« 

How  to  be  recovered  •  •  *5" 

Bydiftrefs  .  •  .  .  .156 

%whata&©n>  -  •  .  '57 

Police^ 


I  i^  D  E  X> 

Police, 


Page. 

May  be  regulated  by  bye  laws  •  ,  i4« 


<iuo  Warranto, 

The  King's  writ  6f  right  for  franchifea  •  395 

Proceedings  thereon  •  *  396— 402 

Form  of  entries  therein  .  .  402,  40  j 

Infoi-mation  in  the  nature  of,  at  the  fuit  of  the  attorney 
general  .  ,  .  .  40J 

"  '  "■"  ""'■  "       **  foiiti  of  fuch  iftformation       403 

'  '"  ■  ■  ■    " ■ "■'  procefs  thereon  ,       ^04 

'  "v'    '  "  ■  pleadings  therein        .  405 

■  judgment  therein      406,  7,  8,  9 

i51ed  ex  officio  by  the  mafter 


■tMB^a 


of  the  crown  office  .         .      .  410,  418—421 

'  '  '  in  }mrfulnce  of  the  ftatute  9 

Ann.  c.  »o  i  •  .  ^i^i 

>-  to  what  cales  that  ftatute  ex* 


■UMMMha* 


tends  ,    •  «  •        *  '    m       422«->427 


rfMMMaMHMMa>^B*i 


within  what  time  the  appli- 


cation  muft  be  made  .  ,  427—431 

-^-*^  under  what  circumftances 


■^^■■MtaiMrfb 


fuch  information  will  be  granted  ,  43*— 437 

■  procefs  thereon  438,  439 

_——_——— «^  pleading  therein  439—445 


Recorder, 

iF*or  what  caufes  lie  taay  be  removed  j  g^ 

Seal, 

Where  he  who  has  the  cuftody  of  it,  may  be  compelled 
toufeit  •  •  •  .  297 

Spiritual  Court, 

Mandamus  lies  tx)  compel  them  to  grant  probate  of  a 
will  •  •  .  .  301,  30* 

Succession, 

M^y  be  continued,  though  no  provifion  be  made  for  that 
purpofe  by  charter  .  .  •  3,  4 


/ 


Trade, 


125 

i»5— 13« 


I  1^  D  E  X, 

Trade, 

Freedom  of, . 

By  common  law 

How  zScAtd  by  different  ftatutes 

by  5  El.  c.  4  •  j^o,  131 

bybyelaws  ..  131-137 

bycuftom    ,       .  .  137-149 

Visitor, 

Hi«  office.  Sec.  well  known  at  an  early  period  274,  175 

Of  what  perfons  the  ordinary  is  vifitor,  and  in  what 

^^^^*  •  •  x8o,  267,  268,  271 

Vid.  Biihop 

Who  fliall  be  the  vifitor  of  hofpitals  .  igo,  ,8, 

Vid.  Governors  of  a  Charity,  Chancery 

May  bt gcMeral  or JPfdal  .  ,95,  ,55,-^^^,  ^^^ 

Not  appomted  by  any  fct  form  of  words  .  ,  ^5 

His  power  to  be  colleded  from  the  ftatutes         196,  127,  235 

His  icntcflce  within  his  jurifdiftioni  final  j^ 

' whether  examinable  in  a  collateral  aaion 

"*>  »04>  2I4|    «I«,  22Z 

Where  not  confined  by  the  ftatutes  to  particular  times, 

mayvifit  atanytime  ,  ^  ^^^ 

Where  confined,  &c.  may  hear  an  appeal  at^any  time       .27 
How  far  he  is  judge  in  the  cafe  of  eleaions  235 

The  queftion,  whether  vifitor  or  not,  how  decided  240 

Independent  mhnbers  of   colleges  not  fubjcft  to  the 

vifitor 

.  240-243 

Nor  can  they  have  any  remedy  at  commoa  law  in  matters 
ofdifcipline  .  .  .  24J 

How  far  a  perfon  claiming  to  be  a  member,  &c.  is  fub- 
je6l  to  the  vifitor  .  ,  ,  ^^ 

Has  jurifdiaion  over  ingrafted  fellowfhips  .         24J 

Has  no  jurifdiaion  in  matters  of  difpute  between  the  col- 
lege and  a  ftranger  .  .  .261 

Nor  where  the  college  is  only  truftee  .     '  163 

Cannot  appoint  to  a  vacant  office 

May  be  prohibited,  if  he  exceed  his  authority  ,„ 

Visitor, 


I  N  D  EX. 

Pack 

Visitor, 

May  be  compelled  by  mandamus  to  receive  an  appeal  278,  zZt 

Vid.  Mandamus 

When  there  is  no  vifitor,  the  vifitation  devolves  on  the 

King 

Vid.  Bifliop,  Chancery,  Eleemofynary  Coi-poration^ 

Ele£Uon.  .-«•/* 


FINIS.